Report 2006-2007

Max Planck Institute for Foreign and International Social Law

PREFACE

Preface

This report provides information about the searchers of the Institute. The following activities performed by the Max Planck In- section informs about the promotion of jun- stitute for Foreign and International Social ior scholars (III.). Doctoral students are as- Law over the two-year period 2006-07. signed an important place at the Institute, a fact which is reflected in this year's report To begin with, the Introduction (I.) sum- by a more detailed description of individual marises the Institute's general tasks and de- dissertation projects. scribes the changes observed during the re- Subsequently, three sections comprehen- porting period. This section above all serves sively document the events carried out at as an inferential framework for the broad or with the involvement of the Institute, the spectrum of research projects conducted. As publications it has brought forth, and the such, and to a greater extent than before, it lectures and teaching activities conducted sets several of its own accents in order to em- by its staff members in the period under re- phasise the most important research fields view (IV. – VI.). As in the past, the final sec- and research approaches. Simultaneously, tions list grantees and guests (VII.) and sum the Introduction gives an overview of con- up the Institute along with its staff, bodies temporary social law developments from a and functions (VIII.). comparative perspective and illustrates how these developments have been taken up in We hope this report will not only render an the research pursued at the Institute. interim account of our activities, but will at the same time allow its readers to gain in- The next section is the largest. It depicts the sights into the multifarious developments of manifold research projects undertaken by the social law. This is in turn hoped to stimulate Institute staff in the reporting period, outlin- interest both in our research work and in ing the individual phases from project plan- overall issues of social law. ning until the publication of findings (II.). As in the preceding report, the projects are Munich, January 2008 portrayed in brief, self-contained accounts. The respective texts have been prepared by Ulrich Becker the staff members entrusted with project coordination, even if all projects, with but a few exceptions (mainly consolidated under item 4.), are jointly planned and frequently carried out in collaboration with several re-

1 REPORT 2006-2007 Contents

Preface 1

Contents 2

I. Introduction 5

1. Tasks, History and Structure of the Institute 6 2. The Institute's Research Programme 6 3. Promotion of Junior Scholars 17 4. Staff Changes 17 5. The Institute as a Research and Meeting Place 18

II. Research 21

1. Europeanisation and Internationalisation 22 1.1. General Principles of Social Security Law in Europe 22 1.2. EC Coordination Law 24 1.3. Health and Social Services in the Internal Market 25 1.4. Pharmaceuticals in the Internal Market 27 1.5. Internationalisation 29

2. Changes in Developed States 32

New Forms of Regulation and Activation 2.1. Choice and Competition in Hospital Health Care 32 2.2. Perspectives of Integrated Care and Competition 34 2.3. Interdisciplinary Research on Competition in the Health Care System 36 2.4. Reform of Dutch Health Insurance 37 2.5. Activation and Employment Promotion in a Comparison 39 2.6. Mediation in Social Jurisdiction 41

Structural Reforms to Social Beneﬁ t Systems 2.7. Restructuring Retirement Provision through Basic Pensions? 42 2.8. Social Security Reforms in Japan and Germany in the Face of their Ageing Societies 44 2.9. Perspectives of Accident Insurance in Japan and Germany 45 2.10. German-Japanese Joint Research on Social Security 47 2.11. The Law on Behalf of Persons with Disabilities in Europe and Asia 50 2.12. Reform of Social Benefit Systems in Germany and Turkey 51 2.13. The Swedish Welfare State: Its Modernisation, Stabilisation and Europeanisation 52 2.14. Social Security Jurisdiction in a Comparison 53

Family and Social Protection 2.15. The Third Generation – Child-Related Social Benefits in a Legal Comparison 54 2.16. Gender Role Models in Family Law and Social Law in Europe 57 2.17. Family Policy in the Ageing Society – A German-Japanese Comparison 60 2.18. Gender-Related Differentiation of Statutory Retirement Age 62 2.19. Structural Reform of Pension Rights Adjustment 62

2 CONTENTS

3. Transformation in Threshold Countries 63 3.1. Law and Social Security in Developing Countries 63 3.2. Social Law Developments in China 65 3.3. Access to Social Security 67 3.4. Social Security in Indonesia – On the Creation of Legal Foundations for a Universal System 68

4. Multi-Focus Research 70 4.1. Communities without Frontiers? On the De-concentration of Legal Affiliations to Political Communities 70 4.2. Right to Health 71 4.3. Equality through Law 73 4.4. The Social History of Pension Insurance in the German Empire: 1871-1914 74 4.5. Crises of the Welfare State: 1965-1995 75 4.6. The Reform of the World Anti-Doping Code 76 4.7. Emeritus Workplace: Hans F. Zacher 78 4.8. Emeritus Workplace: Bernd Baron von Maydell 82

III. Promotion of Junior Researchers 85

1. Doctoral Group: "State Responsibility for Social Security in Flux" 86 1.1. State Responsibility for the Provision of Institutional Long-Term Care – A Comparative Analysis of Germany and England 86 1.2. Responsibility and its Attribution under Employment Promotion Law – A Comparative Analysis of "Employment Promotion Schemes" in the United States and Germany 87 1.3. Damage Mitigation Duties under the Liability and Social Security Laws of Germany, Austria and Switzerland 87 1.4. Agreements in Social Law – Cooperative Instruments of Labour Administration in Germany and England: A Comparative Investigation of the "Integration Agreement" under German Law and the "Jobseeker's Agreement" under English Law 89 1.5. Social Benefits to Migrants with Irregular Resident Status in Germany and Spain 91

2. Doctoral Group: "Influence of Constitutional Law and International Law on the Configuration of Social Security" 92 2.1. Social Security in the Republic of Poland 92 2.2. Social Security in Portugal 93 2.3. Social Security in Hungary 95 2.4. Social Security in the P. R. China 95

3. Doctoral Group: "The Triangular Benefit Delivery Relationship in Social Law" 96

4. Individual Dissertation Projects 97 4.1. The Occupational Accident and Disease Risk in Transnational Employment Relationships – Social Security and Employer Liability in the International Social Law of Germany and Australia 97 4.2. The Admissibility of Social Award Criteria in the Light of EC Law 98 4.3. Mediation in Bavarian Social Jurisdiction 99 4.4. Free Movement of Physicians within the European Union 99

3 REPORT 2006-2007

5. Doctorates 100 6. Habilitation 100

IV. Events Organised by the Institute 101

1. Conferences and Workshops 102 2. Guest Lectures 111

V. Publications 113

1. Publications of the Institute 114 2. Publications by the Institute Staff 114

VI. Papers and Lectures 127

1. Papers 128 2. Lectures 144

VII. Grantees and Guests 147

1. Grantees 148 2. Guests 148

VIII. The Institute 151

1. Personalia 152 2. Scientific Advisory Board and Board of Trustees 154 3. Library 154 4. Homepage and Internet 158 5. Honours 159 6. Work of Institute Members in External Bodies 160 7. Collaborations 162 8. Legal Opinions 165 9. Alumni Network 166

4 I. Introduction REPORT 2006-2007

1. Tasks, History and can be brought to fruition. For some time now, a chief policy in engaging new research Structure of the Institute staff – considering also that only fixed-term posts are currently available – has been to According to its statute, the Institute is de- seek experts on national social law regimes voted to research in the field of foreign and which are of particular significance to de- international social law. velopmental and reform processes (cf. 2.1. Following a suggestion made in 1972 by the below). Worth noting in this context is that former president of the German Federal country-specific investigations by no means Social Court, Prof. Dr. Georg Wannagat, to become obsolete through processes of Eu- establish a Max Planck Institute for inter- ropeanisation and internationalisation. This national social law, the Max Planck Society is because social law is characterised to a decided two years later to launch a project much lesser extent than other legal fields by group for international and comparative unitarisation tendencies. And besides, the social law in Munich. This project group implementation of legal measures taken at commenced its activities in 1976 under the the uppermost strata of a multi-level system leadership of Prof. Dr. Dr. h.c. mult. Hans is decisively influenced by national institu- F. Zacher. To begin with, it employed a staff tions and cultures. It goes without saying of five, later six researchers. Ahead of sched- that the Institute-based knowledge of for- ule, that is, prior to the end of the originally eign law is augmented by including schol- planned term, the group's conversion into ars from abroad in individual projects or by the Max Planck Institute for Foreign and conducting projects with foreign cooperation International Social Law was resolved and partners. subsequently carried through in 1980. From 1 January 1980, the Institute was under the direction of its founder, Hans F. Zacher, who in 1990 assumed the office of 2. The Institute's Research President of the Max Planck Society while Programme continuing his directorship on a temporary basis. He was succeeded as Institute direc- 2.1. The Analytical Frame tor on 1 February 1992 by Prof. Dr. Bernd Baron von Maydell. After Prof. von Maydell Social law is subject to constant change, acquired emeritus status on 31 July 2002, which in recent years has been based not on- the direction passed on to Prof. Dr. Ulrich ly on adjustment needs inherent in the given Becker, LL.M., who took full-time office as systems, but also on developments that ne- Scientific Member and Managing Director cessitate reforms of the systems as such. In from 1 September 2002. systematically recording and analysing these developments, three central processes come The Institute is currently run by one direc- to the fore. They run parallel to each other tor who is simultaneously responsible for and, as has been detailed in previous reports, its executive management. The research are interrelated in many ways. This aspect staff observe and analyse developments in will be pointed out time and again in the fol- social law and social policy in a number of lowing sections. It is expedient nonetheless European and non-European countries. This to distinguish special features of significance country-based structure is supplemented to the analysis and comprehension of these by responsibilities for specific subjects and processes, which may be characterised as the observation of international organisa- follows: tions. This division of tasks will basically be upheld in the years to come because social ß the Europeanisation and internationali- law is and will continue to be shaped pri- sation of social law, in the sense of new marily by national factors. Country-specific regulatory levels above those of the state, societal, economic and cultural backgrounds and interdependencies between the legal are therefore essential to the understanding requirements posed at these levels and of law, and it is in this sense that the exper- state law; tise acquired by all staff of the Institute in ß the adaptation and/or modernisation of so- the course of their longstanding activities cial security systems in developed states,

6 I. INTRODUCTION

in the sense of disencumbering the state debates readily reflect the increasingly in formal and substantive terms, thereby important role of developments in social adopting new steering and action forms; benefit schemes – important not only for ß the transformation of social benefit systems financial purposes, but for the genuine re- in developing and threshold countries, in alities of people's lives and the stabilisation the sense of building up state schemes to of society. support and supplement traditional forms of social protection in the wake of rapid economic growth and concomitant soci- 2.2. Importance of Regulatory Levels etal change. above Those of the State

In exploring these three processes, basic Europeanisation questions are important in many respects. Again, this must be stressed as an initial Does European integration undermine the premise. On the one hand, these questions fundaments of the welfare state? And how are important for the examination of national social is Europe? These questions have be- legal orders. Social law can serve as an area come topical again – now that the Consti- of reference for enquiries into overlapping tutional Treaty is known to have failed, also concerns of legal policy and legal doctrine, because all talk about a European Constitu- for instance the effects of privatisation or the tion was obviously unable to mask the image role of competition in social benefit schemes. of technocrats sitting in Brussels and relent- On the other hand, basic questions also have lessly pursuing market activities; and now to be raised as far as the role of compara- that the pending so-called Reform Treaty tive law is concerned. In times of intensified (Treaty of Lisbon) is hoped to furnish the exchanges of information, an often posed instruments needed to resume the blocked question is whether national regulatory pat- integration process. terns can be transferred to other countries' social benefit schemes – either because If, at this point, we strike an intermediate bal- reform needs are similarly embedded in ance, we see that two hypotheses cannot be different states in that, say, demographic confirmed: First, the creation of an internal developments threaten the fundaments of market must invariably entail European so- pay-as-you-go risk coverage schemes; or be- cial benefit systems, and economic freedoms cause increasing economic exchange and and social solidarity must be aligned on a migration calls for a greater convergence political level. Second, asymmetry between of social benefit schemes, as in the case of higher-ranking European market law and the the European Union through the now in- member states' social law eventually leads to stitutionalised process of benchmarking; or similar social benefits due to the need to re- because conventional social security options duce labour costs and to replace them with are to be replaced by new forms of protec- tax financing. Both these hypotheses have tion in the wake of societal development and been refuted by the fact that there is no line- change. At any rate, all these issues presup- ar development towards either a higher level pose knowledge of the national legal systems of harmonisation or a lower political level of involved. Yet in seeking to clarify the above uniformity. Although Community law affects processes, the point is not merely to compare national social law, the latter at the same these national systems in functional terms, time reflects back upon Community law. but (also) to illuminate their intrinsic mech- This results in interweavement and, in the anisms of action and their social and cultural end, gives European integration a social di- foundations. mension, which continues to stem from the member states themselves and must take In this way, considerable weight accrues them into account. to general structures and principles, such as forms of democracy, rule of law or the The welfare state is a national achievement. protection of individual freedoms, but es- Especially in times of economic prosperity, it pecially to the institutional arrangements may lose sight of its own fundaments, name- underlying the actions of stakeholders and ly the personal responsibility of its citizens administrative authorities. Current reform in a freely constituted community. Yet the

7 REPORT 2006-2007

welfare state's basic efficiency remains un- Even so, it is correct to assert that the project disputed, and without it German re-unifica- of completing the single market – an endeav- tion, for instance, would not have been man- our which has been reinforced since the ageable. Because the welfare state must rely adoption of the Single European Act – has on financial redistribution and, moreover, on not been without effects on the social law compulsion, its implementation measures of the member states. To some extent, these require democratic legitimation. How much effects reflect a well-known pattern, namely equalisation is necessary or desirable in indi- that of not setting European standards by vidual cases cannot be implied directly from way of secondary Community legislation but the national constitution. This issue must of applying the economic freedoms specified constantly be decided anew within the politi- in the primary law of the TEC. It is easy to cal process. Until now, this process has been see that a field such as social law, which does located at member state level. We know that not leave the organisation of solidarity up to even back when the European Economic society but subjects it to mandatory regula- Community was established, a bone of con- tion, will come under pressure through the tention was whether merely "economic" or emphasis of individual freedoms. The Insti- also "social" legislative competences ought to tute has repeatedly devoted itself to the at- be incorporated into the founding treaty. The tendant phenomena in the past (II.1.3. and more moderate framework was ultimately II.1.4.). And it will have to go on doing so in resolved. Socially oriented Community law the future because the effects of Community provisions were only adopted in favour of two law raise ever new questions for the continu- objectives. The first sought to establish equal ing validity and application of national law wages for women and men – initially, more (cf. also the diverse publications listed under an anti-dumping measure based on competi- V.2.). tion policy rather than an attempt at equal treatment. The second involved the coor- In taking an overall perspective, it becomes dination of national social benefit schemes clear that existing competences are not deci- – without which the fundamental freedoms, sive for the impact of Community law in the namely the free movement of workers, ap- sense that contacts between economic and peared unattainable. The academic accom- social law could be avoided entirely. Wheth- paniment of this field and its modernisation er or not the ECJ goes too far in individual was once again a subject of the Institute's cases, nothing will change here in general as work in the period under review (II.1.2.). long as the functioning of the internal market and the economic freedoms that support Since then, much has happened. The Eu- it are not questioned as a whole. ropean Community has developed its own social policy approaches, notably a sophisti- The one solution that remains – at least, cated gender equality policy and labour pro- provided the creation of genuine European tection legislation. Step by step, EC institu- social law is out of the question – is to rec- tions have been entrusted with additional ognise the national social benefit systems competences for framing social policies via by taking account of their specific features. the detour of the Social Protocol adopted To begin with, this applies in political terms upon redrafting the pertinent chapter in the in the sense of law-making. To what extent TEC through the Treaty of Nice. Yet all these restraint must be exercised here is still de- competences are not far-reaching enough for bateable. Examples are nevertheless readily the creation of EC social benefit schemes. available. One is found in the recognition of Quite on the contrary: until today, there have so-called social award criteria alongside the been no earnest endeavours to establish such strict economic principles defined in public competences. Nor did the constitutional procurement law. Then there is the Servic- treaty reflect any such approaches towards es Directive, which is applicable neither to comprehensive Europeanisation through "health care services" nor to "non-economic legislative measures. Hence, it is not to be services of general interest". On behalf of expected that the EC might develop a social the latter, the Commission is currently seek- insurance system out of existing labour pro- ing to frame a separate directive that does tection legislation, as in the former case of greater justice to regulating the possibilities the German Empire in the 19th century. for accessing cross-border health services,

8 I. INTRODUCTION

which have been extended through the fun- member states, also in the future. It is they damental freedoms. who give substance to this law and impart its shared principles (more detailed II.1.1.). The need to take account of social law must, however, also be ensured when applying In this context, efforts to frame a common no- primary Community law – and this poses a tion of "what is social" have been institution- challenge to legal doctrine when address- alised through the so-called "open method ing the fundamental freedoms, in particular of coordination" (OMC). Indeed, one might the freedom to provide services and the free consider this designation inappropriate (ac- movement of Union citizens. Important here tually, the procedure should have been called is that the underlying three-level test must "method of open comparison"). And one incorporate the member states' competence might also question the full-bodied declara- and above all their factual responsibility for tions that have accompanied it, heralding the well-functioning social benefit schemes. For world's strongest, knowledge-based economy it remains solely up to the member states on the basis of a European social model. All to determine their national level of social of which seems to obscure rather than define protection. Less incisive measures than the clear aims. But nonetheless – the OMC ap- ones they have actually taken can only be an proach itself is to be welcomed. It comes as alternative if these do not lower this level. no surprise, then, that some consider OMC Further, the member states must remain too soft while others feel it goes too far. But responsible for assessing concrete endan- it brings member states together and calls germent, meaning they must be entrusted upon them to exchange views on how they with a prerogative in such matters. And even plan to adjust their social benefit systems where social rights are derived from Union to meet the shared challenges of a changing citizenship, member states must in future working world and of demographic process- be permitted to provide the social benefits es, both of which have been accelerated by they wish to provide in order to ensure that internationalisation. OMC is thus a means the fundaments of these benefits are not of exchanging proposals for solutions, a mu- eroded by so-called social tourism. Mem- tual learning process. Provided the Commis- ber states therefore must not be prevented sion's pre-formulated guidelines and ways from subjecting social benefit entitlement of achieving them are correctly understood to conditions that might be qualified as be- – that is, not misconstrued as authoritative ing indirectly discriminatory if this is neces- requirements – this can lead to more clarity sary as a means of control and if, in this way, in seeking to identify basic matters of social they wish to demand a "factual relationship" policy that should be regarded as indispensa- to the host state. Finally, a further limit to ble in future. Community law intervention follows from the axiom which, though acknowledging Internationalisation the territorial and personal scope of existing rights, declares that these may not be taken The findings of the project on the "imple- to establish new rights. In other words, social mentation of international social standards" benefits not provided for by a member state were published during the reporting period may not be created by the ECJ through its (cf. II.1.5.). They reveal persisting weak- rulings. If benefits are denied for the simple nesses inherent in international instruments reason that they do not exist, this cannot be specific to social law, but they also portray deemed a restriction, and at the same time a the manifold mechanisms used to put them violation, of a fundamental freedom. into practice, at least in individual cases. Worth noting are not only vertical entangle- If, nevertheless, the European Union has set ments between the diverse regulatory levels, itself the goal of achieving social progress but also horizontal conflicts between social and has in its more recent reform projects and economic standards. These conflicts are reinforced that aim, at least through the well-known from the European level and also number of descriptors it uses to say so, then play an important role at universal level. the question remains how the Union intends to go about this. To come full circle: social As to the effects of international law on na- law in Europe will continue to be that of the tional law itself, distinct differences between

9 REPORT 2006-2007

individual states tend to emerge. Such dif- 2.3. Modernisation ferences may be attributable to the density of their national constitutional requirements The contemporary welfare state is now in a – at least, that was suggested by the compari- phase of profound change. From a histori- son between Germany and the Netherlands. cal perspective, this marks the third stage And this seems to hold true on the premise of welfare state development. Related to that in times of extensive changes to social Germany, the first stage of "social state" benefit schemes, a stabilising element is development was launched by the seminal seen in the adherence to more general legal achievements of social insurance legislation provisions and the principles they express. adopted in the 1880s during the Bismarck This premise is also supported by the obser- era. Developments from the 1950s onwards vation that in times of political upheaval and may be regarded as the second stage. Com- fundamental transformation of legal systems, paratively little had meanwhile occurred in international standards are sought out as a the preceding decades, other than exten- means of orientation. The development of sions to the groups covered by the diverse so- labour law in South Africa, for instance, has cial insurance schemes. It was not until the already proven that this is so. Further find- sweeping Pension Reform of 1957 that social ings of relevance to social law are awaited insurance sought to secure some degree of from the projects conducted by the second participation in prosperity. Moreover, most doctoral group on the subject of "influence of the non-contributory and non-means- of constitutional law and international law tested benefits were also created from that on the configuration of social security" (cf. time on. Even so, German social insurance III.2.). continued to be based on employment. The only exceptions included a few categories of Similar to the European regulatory level, self-employed persons and non-employed international social standards are likewise persons deemed in need of protection. Ger- influenced by developments at national many thus failed to take the step of introduc- level. Worthy of particular note here are ing universal coverage or of at least extending considerations to undertake a fundamental social insurance to include the entire work- reform of ILO Convention No 102 concerning population – a step many other European ing Minimum Standards of Social Security, countries had already taken in the course of dating from 1952. Impulses to do so come the 20th century – some before and some af- from two very different directions: on the ter the Second World War. one side, developed states are pushing for these minimum norms to be brought into For about ten years now, structural changes line with the modernisation of their social have again been in the spotlight. Flagging or security systems, which were extended in absent economic growth and, in particular, the course of the 20th century; on the other demographic developments reflected in an side, developing states wish to see novel so- ageing and declining population have caused cial security arrangements reflected at an in- distributional margins to shrink. Although ternational level. Such a reform nevertheless social protection systems are acknowledged proves politically difficult in times when any to fulfil an important function by integrating change to social standards is feared to entail and stabilising political communities – a fact an extensive loss of social rights. Even so, which is also increasingly recognised within the effectiveness of international standards the European Union – it is likewise acknowl- will very likely be weakened further if they edged that these systems, and the state in- are not adapted, for they otherwise risk los- terventions associated with them, must be ing the necessary feedback to national social newly justified and adapted. Notwithstand- law. The Institute will therefore reinforce its ing the above-outlined Europeanisation and future investigations on ongoing reforms to internationalisation of social policy, decision- international social standards by way of its making as regards the configuration and, own projects and accompanying research. hence, the restructuring of social benefit systems must largely remain confined to the national level. In view of similarly embedded problems in other countries, the need for comparative studies is great indeed. For it

10 I. INTRODUCTION

helps to find out more about other potential effectiveness and efficiency of social ben- solutions – always on condition that com- efits. The underlying, at all times valid ac- parisons take account of basic structures and knowledgement is that state redistribution yet address all relevant details, as otherwise measures are only legitimate if they are ac- nothing can be said about the transferability tually used to pursue a legally recognised of individual reform measures. objective. For reasons of political economy, such correlations are often not observed in New Forms of Regulation and Activation well-established welfare states until the financial resources available for distribution Activation as an instrument of social secu- run short. Only in the past few years have rity is not really new. Its origins date from efforts to ensure the quality and enhance the the U.S. labour market policy adopted in efficiency of social benefits been stepped the 1970s, but it is also found in Germa- up perceptibly. These tasks tend to be pre- ny's newly amended employment promo- carious above all in benefit systems in which tion legislation. As a comprehensive strat- independent third parties are called upon egy, however, activation is associated with to render the benefits, and they are mainly the Clinton Administration. Thus starting found in the health care and long-term care in the United States, via Australia and the sector of most countries (which, contrary United Kingdom, activation has meanwhile to widespread opinion, sometimes even in- reached all member states of the European clude countries with a national health sys- Union and is found accordingly in the em- tem). This sector is characterised by multi- ployment policy guidelines forming a part of ple legal relationships: benefits awarded by European social policy. The aim of activation virtue of the legal bond between the fund- is to prompt changes in attitude on the part ing institution and the beneficiary (so-called of both beneficiaries and the administrative social benefit relationship) are delivered by bodies. In practice, however, it is very closely benefit providers (e.g. physician or hospital), connected to the more recent tendency to and thus based on a "performance relation- reinforce the personal responsibility of in- ship" between these providers and the ben- dividuals faced with social risks. And in the eficiary. The reciprocity between both legal field of labour market policy, as is shown by relationships makes it necessary to regulate the enactment of SGB II in Germany, grow- the relationship between providers and funding importance is attributed not only to sanc- ing institutions, which may be regarded as tions for the infringement of cooperation du- a "guarantee relationship". Accordingly, such ties, but also to new regulatory instruments regulations govern matters ranging from the within the administration as well as new admission of providers (by way of either per- modes of outward action. The latter pertain mit or contract), the securing of benefit de- to contractual agreements, which as such are livery and provider remuneration, to quality of course nothing new, but which until a few and efficiency controls. General questions years ago were scarcely used in the field of regarding this form of "guarantee" and the social benefit law – at least, not in the rela- multi-dimensionality of the benefit delivery tionship between the administration and cit- relationship as a whole are being addressed izens. These developments have constituted by a doctoral group established at the end the subject matter of a series of projects con- of 2007 (III.3.). Competition as a specific ducted at the Institute: from a comparative steering instrument has also been a subject international and interdisciplinary perspec- of Institute research in several projects. One tive, "activation and employment promotion such project is the largely concluded investi- in a comparison" (II.2.5.); the dissertation on gation entitled "Choice and Competition in "integration agreements" (III.1.4.); and the Hospital Health Care" (II.2.1.). Then there dissertation, concluded in 2007 with a view is the recently initiated study on competition to more general cooperation duties, on the in the health care sector (II.2.3.), which fo- subject of "damage mitigation duties under cuses on competition regulation and appro- the liability and social security laws of Ger- priate regulatory regimes. Insights into the many, Austria and Switzerland" (III.1.3.). effects of competition have also been gained by scrutinising the Dutch health insurance The heightened reform pressure of recent reforms (II.2.4.); this examination was con- years has driven endeavours to improve the tinued in the period under review and was

11 REPORT 2006-2007

able to record early results of the latest level of benefits and, hence, the function of Dutch reform in this sector. Of prime impor- benefit systems as a whole. And this likewise tance to legal developments in Germany is affects the organisation of these systems as the so-called integrated care model (II.2.2.). reflected, say, in the interplay of their diverse This form of care delivery, which is mean- forms such as private and public insurance. while being practised on an increasing scale, Thus in Germany, the statutory pension in- permits not only cross-sectoral health care surance reform entailed elements of partial activities, but above all entails the conclu- privatisation, while the latest health insur- sion of individual contracts between sickness ance reform seeks to intensify competition funds and single providers and/or provider between private and statutory insurers. But associations. Integrated care thus enhances even within Germany's social insurance competitively oriented demand conduct on branches numerous organisational changes the part of sickness funds, and such conduct have recently been undertaken. Apart from reflects back on the supply side, namely on the incorporation of new steering instru- their relationship to the insured. ments within the labour market administration, such changes involve the centralisation Judicial law enforcement was another sub- of self-governance in pension, health and ac- ject of our research activity in the report- cident insurance. ing period. This was reflected, on the one hand, in the continuation of the project on Alongside the assessment of new proposals the function of social jurisdiction. This infor reforms to German social benefit sys- vestigation dwells on recurrent demands tems from a legal point of view (regarding for the consolidation of general and specific old-age protection, see II.2.7.), an additional administrative jurisdiction in Germany, and goal of Institute research was to place the thus belongs to the next point treated below above lines of development in a compara- (and more detailed in II.2.14.). On the other tive law perspective. To that end, the Insti- hand, the project on "mediation in social ju- tute, besides drawing on its own expertise, risdiction" (II.2.6.) has been newly launched. collaborates with foreign scholars, profiting Here again, the focus is on a new field of ap- from longstanding experience with as well plication of familiar forms of action, namely as strong institutional ties to foreign estab- amicable dispute settlement "built into" the lishments. One such collaboration in the judicial procedure. The project is the aca- period under review involved a comparative demic accompaniment of the model experi- assessment in relation to Turkey, where so- ment initiated and sponsored by the Bavarian cial insurance schemes have been subject to State Ministry of Labour and Social Affairs, a sweeping reform (II.2.12.). The observa- Family and Women. The aim is to clarify the tion of developments in the Swedish welfare legal framework of mediation in social court state (II.2.13.) sheds light on how the Nordic proceedings and, in particular, to ascertain model is responding to current challenges. by means of empirical research the condi- In the process, the model's special features tions and constellations in which mediation are highlighted, while the often too heavily may serve as a helpful instrument to improve accentuated particularities of Nordic social the pacification function and the efficiency law are relativised vis-à-vis social law devel- of judicial proceedings, without detracting opments in other EU member states. As in from the assurance of adequate legal protec- the past, highly productive insights may be tion by virtue of state authority. gained from comparisons with developed states whose legal systems have been shaped Structural Reforms of Organisation and by cultural features that distinguish them Benefits from the European corpus of law. Worthy of note in this context is the ongoing project on In view of the broad lines of development de- the social law position of persons with dis- scribed at the outset, current social law re- abilities in Europe and Asia (II.2.11.). Com- forms tend to go beyond mere adjustments to parisons with Japan were undertaken in sev- existing systems. They impact fundamental eral projects highlighting respective current aspects of structuring social benefit systems, developments: in accident insurance (II.2.9.) notably as regards persons entitled to protec- as well as in health, long-term care and pen- tion, promotion and support, as well as the sion insurance (II.2.10.). Of great interest to

12 I. INTRODUCTION

German readers is the study conducted over sense of protecting, supporting and promot- a longer term by a Japanese guest scholar at ing those members of society in whose hands the Institute, for it shows how German social the future of society lies. law reforms are perceived from the outside, thus placing them in a new light (II.2.8.). To be sure, making family and child care compatible with employment plays an im- Family and Social Security portant role for the "third generation", albeit a rather indirect one. On the other hand, The reinforcement of personal responsibility women's increased participation in the la- goes hand in hand with an altered distribu- bour force obviously impacts gender role tion of societal and state responsibility for models more directly. A project supported social security. The first doctoral group es- by the German Federal Ministry of Family tablished at the Institute sought to look into Affairs, Senior Citizens, Women and Youth this matter with the help of different exam- took a comparative law perspective on how ples (III.1.). A number of additional projects this trend will reflect back on social law carried out in the reporting period were de- and family law in selected European states voted to the role of the family in terms of (II.2.16.). An important aim is to analyse the social security. They embraced such issues interplay between family and social law – an as the promotion and support of children as aspect which has often been neglected on well as the significance of changing gender account of the separation of these two juris- role models. These themes were dealt with prudential disciplines. in highly differing ways. One procedure, for example, was to embark on comparative analyses of very specific questions such as 2.4. Transformation in Threshold Countries gender-related retirement age limits in old- age protection (II.2.18.). This project took a In threshold countries characterised by a new approach in that it dispensed with an rapid pace of economic growth and mounting extensive and work-intensive processing of social inequality, the construction of social legal foundations in favour of spotlighting security systems is vitally important as an in- narrowly outlined individual aspects preva- strument of societal integration and stabilisa- lent in all countries examined. But also more tion. In the context of general modernisation comprehensive comparisons embracing theories, one could hypothesise that industri- foundational aspects and numerous coun- alisation and increasingly differentiated work tries were conducted, as was a bilateral ex- processes diminish the significance of soci- change with Japan (II.2.17.) and a commen- etal forms of social protection, notably the tary on a specific German reform proposal family, causing these to be replaced either (II.2.19.). by other collective arrangements or by protection schemes under the responsibility and The study on "The Third Generation" has administration of the state. It is in this sense largely been brought to a close (II.2.15.). Its that attempts have been made to formulate a title, though somewhat pointed, expresses theory of welfare state development. the view that social security systems rest not only on the shoulders of the working and the Yet, whether all states can generally be ex- retiring generation, but also on those of the pected to follow a particular path of devel- upcoming generation. This simple as well as opment is open and questionable. The early fundamental recognition already had a bear- beginnings of social insurance in Europe al- ing on the big German Pension Reform of ready show that its emergence can only be 1957. Yet it likewise applies to the future of explained against the backdrop of certain po- political communities as a whole. That is why litical constellations and notions of state phi- this investigation, involving the legal systems losophy. The same holds true for its further of Germany, France, Italy and Sweden, fo- development. The history of social security cuses on social and childcare benefits as a is moreover marked by phases that were con- whole, taking account of their complex cor- ducive to such development. But even if the relations. In contrast to previous approach- relevant parallels could be drawn in an in- es, the study deliberately places children, ternational comparison, the concrete choice and not the family, in the foreground: in the of configurative elements, the mix of private

13 REPORT 2006-2007

and state components, the degree of legally stone for this endeavour was laid in the form prescribed solidarity and the level of protec- of an interdisciplinary workshop (II.3.1.). tion would ultimately depend on national The workshop as well as the longstanding particularities. That explains why uniform exchange of insights with scholars from Bra- concepts for the layout of social protection zil, China and South Africa also has shown have partly met with rejection and, in the how important it is for threshold countries to event of their implementation, have often compare developments among themselves. come up against practical difficulties. Two projects have been devoted to health Quite obviously, the lack of resources and care systems in different threshold countries. bureaucratic infrastructures in developing The one deals with the "right to health", countries limits their possibilities for build- above all in a German-Brazilian comparison ing up adequate social protection systems including international law and the respec- in the short range. Yet even where economic tive legal regimes of South Africa and Mexico power is growing and where precisely this (II.4.2.). This investigation elucidates the fast pace of growth is heightening social in- role of constitutional law for protecting social equalities and risks, there are many reasons rights precisely in times of profound changes why the mere adoption of certain models will – whether through the extension or the re- not readily meet with success. An important duction of benefits. The stabilising function reason tends to be the existence of a large in- of constitutional law has also been confirmed formal sector, the significance of which was by the research on "equality through law" illuminated for South Africa in the project (II.4.3.). These thoughts will be engrossed by "Access to Social Security" (II.3.3.). Intrin- the Institute's third doctoral group (III.3.). sic features of this kind have also prompted The other project on health care systems in demands to take greater account of develop- threshold countries focuses on the construc- ing countries' circumstances when reform- tion of a public health system in Indonesia ing international protection instruments (cf. (II.3.4.). This project, backed by third-party 2.2. above). Looking into these matters more funds and assigned an advisory function, has extensively than in the past will be one of clearly revealed the difficulties which arise the Institute's future tasks. After a longer when a system long left to its own devices term of preparation and drawing on early is fundamentally restructured through the in- ties established two decades ago, a corner- creased acceptance of state responsibility.

14 I. INTRODUCTION

2.5. Global Social Order links between national social security systems – regulations that by far transcend previously In the wake of globalisation, life processes established conflict of law rules governing that used to be confined to the national realm social security (say, for migrant workers). now massively take place on a transnational The overriding aim must be to build up and scale. That applies especially to processes sustain mutually accessible systems of social which, if they occur within a national frame, protection worldwide. It follows that such are in many countries accompanied by mis- regulations are requisite at an international cellaneous measures of social protection in level. The international community must in- the areas of gainful employment, need cover- creasingly seek to furnish a regulatory con- age, establishment and maintenance of fam- cept of values and global governance, pro- ily arrangements, and so forth. By the same viding normative rules for the creation and token, that applies also to processes that maintenance of a social order that embraces bring about changes to these socially relevant both states and transnational actors. The ulti- life processes, say, through business forma- mate question will also be how such a global tion and operations, capital migration, and social order relates to prosperity differences. the like. This growth in the transnationality This issue is compelling alone because these of socially relevant activities tends to overtax differences place restrictions on the recipro- national welfare states. International inter- cal opening of national social protection sys- penetration weakens their territorially bound tems. The globalisation of social protection responsibilities. To an increasing degree, so- is moreover not feasible unless its underlying cial protection needs to be rendered to per- principles (such as social justice, solidarity, sons whose fate is no longer locked within a participation, security, self-responsibility and single state, its economy and its society's cul- subsidiarity) find worldwide recognition. The tural and civilising distinctions. The financial difficulties ensuing here are self-evident. resources required for distributive purposes first have to be earned, although the encum- Even so, the Institute will attempt to cope brance of productive factors can be evaded with these difficulties. Previous research on by way of transnational channels. this subject matter exhibits large deficits. In the field of public international law (as Regulations are therefore necessary to clarify well as in individual other disciplines), one demarcations, reciprocal accessibility and has come to acknowledge that an adequate

15 REPORT 2006-2007

solution cannot consist in merely adopting The most widespread approach taken so far international rules of law, but that one must in accessing this problem area has been to also focus on the rights and obligations of look at human rights. That is justified. Hu- individuals as well as transnational actors. man rights manifest the unity of mankind. Yet the main sights are still set on economic From that angle, an all-embracing social or- freedoms, with the liberalisation of trade der seems an obvious consequence. Human considered a means of achieving progress. rights are thus a central source of energy that The distribution of prosperity gains (and must be tapped to impel research on an in- the cushioning of prosperity losses) is nev- ternational social order. But, as elsewhere, ertheless left up to the states. To the extent the problem with a social order is that uni- that environmental protection is included in versal human rights need to be implement- the deal, this occurs from the perspective ed within the particulate environment of of resource protection, whose transnational national legal and social norms, and other importance is at the very base of economic concrete circumstances. Yet this tense rela- actions. Even here we perceive a lack of tionship between the abstract universality of binding rules. All the more so are such rules human rights and the particulate diversity of lacking in the sense of a global order govern- the global world is precisely the challenge ing social circumstances, the complexity of facing the international community. The hu- which is far greater in many respects. man rights approach is moreover often associated with selective one-sidedness. For In what way the international community instance, the rights of migrants would also should aspire to some form of global govern- have to be compared with the obligations of ance in the social sphere remains an unsolved transnational corporations. Above all, how- question, one that is hardly even discussed. ever, a global social order requires an institu- That may be attributable to various difficul- tional framework – whose attendant difficulties inherent, for example, in the setting of ties derive to a far greater extent from the generally accepted distribution rules as well particulate diversity of concrete issues than as in the creation of an institutional founda- from the universality of human rights. tion, perhaps also in the fact that well-functioning nation states are indispensable to a In dealing further with this project, which has successful international order. Given their been launched through several workshops urgency, these difficulties nevertheless do and lectures (II.1.5.), it will be important to not suffice as a reason for eschewing intense link investigations to the research involving and unbiased reflections on the creation of the International Labour Organisation and a global social order and its underlying pre- similar globally active international institu- requisites. tions. Yet the ILO applies itself to states. A global social order must, conversely, have its origins in the stewardship of the international community. Only thus can justice be done to the challenge of globalisation. It will moreover be necessary to revert to the thought reservoirs of legal philosophy when addressing the question of a just world order. The research called for here must nevertheless go beyond that. It must be more intent on finding positive solutions. And it should take a direction that is normative in its rudiments (as opposed to comparative observations of actual developments in social protection systems on the basis of, say, modernisation theories or a theory of global culture). In so far, the investigation of attainable solutions should be striven for. The creation of legal institutions will remain a prime goal.

16 I. INTRODUCTION

3. Promotion of Junior Lectures and Courses

Scholars Serving again on the Faculty of Law of Lud- wig-Maximilians-Universität (LMU) Mu- The promotion of junior scholars is assigned nich in the period under review, the Institute a special rank among the Institute's activi- director, together with assistant lecturers ties. This applies both to university teaching (Prof. Dr. Jürgen Kruse and RiSG Dr. Hans- and to the mentoring of doctoral candidates, Peter Adolf), conducted all social law courses who are furnished with excellent working offered by the LMU faculty. The director was conditions at the Institute. thus one of the examiners for the oral part of the First State Law Exam, and he also held Mentoring of Doctoral Candidates compulsory lectures on local government law in order to strengthen contacts between The work of three different doctoral groups students and the Institute. In addition, he overlapped temporally in the reporting pe- served as examiner in compulsory elective riod. Each of these groups consists of four courses (main focus area 5) – business and or five doctoral candidates who are engaged corporate law: labour and social law. in specific dissertation projects within the Members of the Institute staff were also en- overall frame of a more or less broad general gaged as lecturers abroad (cf. VI.2.): within subject. Their aim is to cooperate closely by the frame of regular courses at the universi- exchanging views on common methodologi- ties of Strasbourg, Rennes (Kaufmann) and cal foundations as well as on issues relating Leuven (Becker), as well as within the frame to academic work procedures and individual of individual guest lectures at different uni- thematic problems. The work of each group versities (Becker, Kaufmann, Sichert). is launched in a brief retreat of one or two days. The group members then keep in touch through regular meetings in the Insti- tute. These activities are rounded off by their 4. Staff Changes participation in conferences with doctorands from other universities for the purpose of In 2006 and 2007, several staff members left discussing their theses within a larger circle the Institute. For years they held responsible of interested junior researchers, thus also positions and in this way shaped the Insti- becoming familiar with other work styles. tute's activities and its image. They are to be The doctorands who are engaged in separate thanked again here for their excellent and projects (cf. III.4.) are asked to join a doc- valuable services. toral group that fits in with the timeframe of their dissertation. Thus, Ms Christiane Hensel retired from her long-held post as head librarian in 2006. In The projects conducted by the first group her temperamental and open way, she en- on "state responsibility for social security sured that all staff were furnished with the in flux" (cf. III.1.) were largely completed necessary research material and that the by the end of 2007, although some of the library was always readily accessible to all doctoral examination procedures must still guests. Many scholars from Germany and be brought to a close. Most of the doctor- abroad appreciated her helpfulness and sub- ands of the second group, launched in 2005, stantial support on behalf of their social law on the "influence of constitutional law and research. She was succeeded on 1 June 2006 international law on the configuration of so- by Mr Henning Frankenberger, in whom the cial security" (cf. III.2.) took up their work library has now gained an academic head. early in 2006. The third group on "the tri- Ms Vera Rosburg also retired in 2006 from angular benefit delivery relationship in social her many years of service in the director's of- law" (cf. III.3.) was established at the end fice. Her thoroughness in administering the of 2007. Although the first three doctorands numerous projects and journeys, her attend- have already been gained for this group, joint ance to countless callers from outside and work on the subject matter will not start un- within the Institute and, not infrequently, til the beginning of 2008. her timely reminders to the director provided a stabilising element. Her post is now occu-

17 REPORT 2006-2007

pied by Ms Andrea Feucht, who took up work preparations for the meetings of the Scien- on 1 June 2006. tific Advisory Board and the Board of Trus- In the summer of 2007, Dr Martha Roßmayer tees. changed from the Institute to the MPG Ad- ministrative Headquarters. She was responsible for the Institute's diverse reporting duties, the management of conferences and 5. The Institute as a other events, and for assisting visiting schol- Research and Meeting ars. These tasks are now performed by Ms Anna Fenzl, who joined the Institute on 1 Place November 2007. Work Facilities Dr Alexander Graser, LL.M., habilitated in the summer semester of 2006 at the Faculty The Institute has its own specialised library, of Law of Ludwig-Maximilians-Universität whose collection has again grown over the Munich, thus qualifying as a university pro- reporting period. Meanwhile, more than fessor on the subjects of public law, com- 100,000 volumes are available to library users parative law, sociology of law and theory of (cf. more detailed VIII.3. below). The books law. Since the winter semester of 2006, Mr and periodicals above all cover the social law Graser has been full professor at the Hertie of international organisations, the European School of Governance in Berlin and holds the Union, Germany and selected European chair for Comparative Public Law and Social and non-European states. The holdings also Policy. include publications on social policy, the Further departures from the research staff social sciences and economics as well as were George Mpedi (31/07/2006) and Carlos fundamental works of legal history and legal Cota (31/08/2006). The new research fel- philosophy, and general treatises on consti- low, Dr Yasemin Körtek (from 01/09/2007) tutional, administrative, civil and labour law. has taken over the country section for Tur- Further information can be accessed via da- key which had been unoccupied for several tabases and Internet publications. years. In this way, the Institute enables scholars to As in previous years, there was considerable conduct social law and social policy research fluctuation among the other academic and in a first-rate environment whose resources student staff employed short-time for indi- are unrivalled inside and outside of Germa- vidual projects in the period under review ny. These work facilities as well as the ex- (cf. VIII.1.). They are all to be thanked for pertise of its staff have made the Institute their committed support of the Institute's an internationally recognised centre of social work. law studies. This again attracted many guest New doctorands engaged for the second scholars from Germany and abroad in the doctoral group are Viktória Fülöp and Anna period under review – some of whom were Karina Olechna (both from 01/2006) as well supported by the Institute, while most had as Dongmei Liu (from 02/2006). Nikola come to carry on differently timed studies Friedrich started her dissertation project on sponsored by other institutions (cf. VII. be- mediation in social court procedures in May low). 2007. The third doctoral group gained the doctorands Markus Schön and Ilona Vilaclara The promotion of visiting scholars as well as (both from 10/2007) as well as Magdalena the organisation of guest lectures, workshops Neueder (from 12/2007). and conferences (cf. IV. below) foster both The new librarian, Ms Kathrin Merker was international and interdisciplinary exchang- called in (from 10/2006) to reinforce the lies. It is in this sense that the Institute also brary team, whose workload on account of serves as a meeting place. This is certainly large-scale projects was exceptionally high, important, not least of all because the Insti- especially during the past two years. Finally, tute's size does not permit it to observe all Dr Monika Nißlein was engaged half-time social law systems on an equal scale. And (from 09/2007) to actively take in hand the that is also why the collaboration with for- compilation of the Institute Report as well as eign partners forms such an important pillar

18 I. INTRODUCTION

of its activities. These relationships are to be the Institute's Board of Trustees, comprising extended even further in future, especially high-ranking representatives of national and by enlisting young social law scholars from international bodies. In this way, the Insti- abroad as well as researchers active the field tute seeks not only to perform advisory tasks, of social policy. but simultaneously to enable its staff to take practice-related issues as an opportunity for Publications further in-depth study or the verification of hypotheses. As a publicly funded academic establish- Like most of the jurisprudential Max Planck ment, the Institute considers it a central task Institutes, the Institute for Social Law also to make its basic research results available to delivers expert opinions on behalf of courts other institutions and the general public. in matters of foreign law (cf. VIII.8. below). The findings of scholars employed with the In 2006 and 2007, this task played only a mi- Institute are not only published in German nor role and was performed additionally. and foreign research journals (detailed under Ulrich Becker V.2. below); the Institute also offers its own channels for social law publications (cf. V.1. below). In collaboration with the Institute for Labour Law and Labour Relations in the European Community (IAAEG, in Trier), it publishes the Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (ZIAS). In addition, the Institute puts out two serials entitled Studien aus dem Max- Planck-Institut für ausländisches und internationales Sozialrecht and Schriftenreihe für internationales und vergleichendes Sozialrecht; four new issues of the former were published in the period under review. A series of working papers (MPISoc working papers) deals mainly with narrower, highly topical subjects or addresses specific circles. This low-budget publication is largely, but not exclusively, distributed via the Internet. In the reporting period, one English-language issue appeared with an overview by leading German scholars of current reforms to German health, long- term care and pension insurance. Lastly, the director edits the series Schriften zum deutschen und europäischen Sozialrecht (Nomos Verlag, Baden-Baden), of which four new volumes were released in 2006 and 2007.

Applied Research

Besides conducting its own research projects and promoting junior scholars, the Institute also strives to communicate its findings on German, European and international social law at home and abroad by participating in diverse conferences and workshops (cf. VI.1. below). This very often also involves exchanges with practitioners from ministries, associations and social benefit administrations, as well as with politicians. An important function here is exercised by

19 REPORT 2006-2007

20 II. Research REPORT 2006-2007

1. Europeanisation and to determine, in an intermediate step, how such systems providing social benefits have Internationalisation been shaped by law, and then to develop an overall European perspective on that basis. 1.1. General Principles of Social Security Indeed, one can thereby scarcely hope to Law in Europe discover one underlying principle for all Eu- ropean states. Yet, identifying their respec- The progressive rebuilding of social security tive basic principles should make it possible systems in European states is usually guided to distil their convergences – assuming also by the keywords of modernisation, competi- that national systems are increasingly com- tiveness, or simply cost containment. In part, ing to resemble one another, at least in some these processes are also initiated by supra- of their parts. national regulations. Yet most of the impetus comes from the nation states themselves, Starting Point mainly because of their overriding regulatory powers. Now and again there are demands to In its collaboration with the Research Unit refrain completely from national rule-making Europe and Social Security (RUESS) of the and to relocate fundamental issues of social Catholic University of Leuven, the Institute policy to the supranational level. This never- has set itself the goal of identifying common theless tends to be wishful thinking and does elements of national laws governing social not in any way conform to the actual distri- security, despite all diversity in their intrin- bution of competences between the member sic design. Featuring prominently here is the states and the European Union. protection aspect: the special protection of persons in specific situations of need and In gaining an overall European perspective, the protection against risks. This particular it is therefore not possible to focus (only) on function of social protection law could be the supranational level. The more advisable the smallest common denominator for estab- approach in developing such a perspective lishing the legal framework of a prospective would seem rather to take due account of General Part. The protection function can si- the actual conditions of nationally organised multaneously be used to determine the legal social benefit systems before trying to find framework for classifying the principles and, out whether they display any convergences. A hence, for the actual work itself. A deliberate suitable means of doing so is to identify gen- step has been to focus only on social security eral principles of social security law in Eu- law. Although the protective intent is not as rope. This offers the advantage of being able pronounced here as in the more general social protection law – given that the very concept of social security law presupposes that individuals are in some kind of a position to make their own provisions – we are assuming that the findings on social security law will as a whole be applicable to the entire body of social protection law.

The protective function of social security law is first of all reflected in the acceptance of responsibility for certain persons in specific situations of need. At the same time, however, this special protection is made to depend on preconditions whose absence would lead to a revocation of that function. This overall substantive legal framework comes under the particular protection of vested rights. In other words, the individuals concerned can and must be able to rely on their social rights in terms of substantive law, whose enforcement is in turn safeguarded by

22 II. RESEARCH

legal provisions that facilitate access to social benefits.

Procedure

The project group, consisting of members of the Institute (Becker, Knecht, Quade, Ross, Sichert) and RUESS (Kapuy, Pieters, Schoukens, Zaglmayer), adopted its mode of procedure in the course of the preliminary written work and the workshops held over the past few years. Based on the diverse notions of the protection function of social security law, the research project will concentrate on fundamental lines of protection rendered to individuals subject to collective risks. Not- withstanding their common features, each of these baselines reflects a different approach. Thus the collective element of social security law refers to mutuality and the need to accept mutual responsibility (solidarity). protection functions and guarantees within The individual element is aimed at personal the individual social security systems. In responsibility and at co-participation (self- taking this approach, that is, in excluding a responsibility). The paternalistic element is certain body and scope of social rights from mirrored in mandatory regulations on the any changes, two forms of national action protection of the individual (protection). And can readily be distinguished: the enactment finally, the temporal element embraces the of social security legislation on the one hand, entire system of social security law in that it and the administration and, hence, direct assumes protective functions and guarantees award of social benefits on the other. for specific periods of time (security). The legislative element was investigated with a view to whether the legislature is entirely The research project is devoted to the ex- free by virtue of the constitution or inter- amination of the aforementioned elements national law in its lawmaking capacity, or (solidarity, self-responsibility, protection and whether such overriding legal norms restrict security), an initial step being to trace these its actions to specific matters. A concomitant elements for the national legal systems under query was the extent to which other, adapted investigation. These legal systems include or derived, legal positions admit such free those of EU member or accession states and scope or restrict it, say, through the protec- other states that have already established tion of property or confidence. Also of fun- close legal ties to the EU. In order to identify damental significance was the ascertainment the elements in the individual states, a ques- of mechanisms that essentially permit future tionnaire will be drafted for each element modifications but grant temporally limited and forwarded to the cooperation partners. protection for specific positions, for instance The second step will be to evaluate the na- in the form of transitional provisions. Finally, tional results obtained for each of the four a crucial question was whether the drafting elements. In keeping with the central idea of norms is possible at other levels such as of the project, the comparative legal analy- that of the social administration, in the sense sis will be accompanied by the elaboration of either direct or indirect state administra- of convergences that permit a distillation of tion, and to what extent such normative ac- principles of social security law in Europe. tivities are subject to the same requirements as Acts of Parliament. The Project and the Principle of "Security" The administrative element was examined in In the period under report, the research ven- terms of whether the social administration ture focused on the principle of "security" is conceded scope for discretion in individ- concerning the temporal description of legal ual cases and whether changes to existing

23 REPORT 2006-2007

stitute's work. These pertinent legal instruments of the European Community meanwhile apply in all of the now 27 member states of the European Union; in the non- EU states of the European Economic Area (EEA) comprising Iceland, Liechtenstein and Norway; as well as, fully or partially, in a number of additional states on the basis of Association Agreements, for instance Switz- erland.

These Regulations on the social security of migrant workers – they have been extended and now include self-employed persons – have the task of coordinating the social security schemes of the states covered. The increasing number and diversity of the national social and legal systems involved confront the European legislator, i.e. the Council and practice are possible. An equally important Parliament, as well as the European Com- question was whether administrative deci- mission with a host of legal problems. Thus, sions are binding on the administration it- the coordinating rules must at all times take self, and how once adopted decisions can be account of developments in the EU member departed from, also in agreement with the states and, in particular, of amendments to benefit recipient. This correlates importantly their social legislation; incorporate the case with whether the administration is obliged to law of the European Court of Justice (ECJ); furnish information, advice and counselling, and fulfil the mandate of the European including the consequences of non-compli- Council adopted in the early 1990s requiring ance or misrepresentation. And finally, a very the simplification and modernisation of the basic issue is whether once reached deci- entire corpus of EC coordination law. sions can in fact still be affected by new Acts of Parliament. As an initial step, this latter endeavour entailed the adoption of the above-cited Regu- Reporters from 25 European states (Austria, lation (EC) No 883/04, which places EC Belgium, Bulgaria, Croatia, Cyprus, Czech coordination provisions on a new legal foot- Republic, Germany, Great Britain, Greece, ing. Although the new Regulation is already Hungary, Iceland, Ireland, Italy, Lithuania, valid, it cannot be applied until the attendant Luxembourg, Malta, Netherlands, Poland, implementing Regulation has entered into Romania, Slovakia, Slovenia, Spain, Sweden, force; this is scheduled for the end of 2009. Switzerland and Turkey) were recruited for the investigation of the "security" principle. In this context, the Commission launched The findings of their country reports will flow the project "trESS" (training and report- into the final analysis for the "security" sub- ing on European Social Security). Under project, which is moreover to be published its auspices, seminars attended by theorists along with selected country reports. and practitioners of social law were held Friso Ross at national level in 2006 and 2007 for the discussion of problems posed by Regulation (EC) No 883/04. Specific bilateral problems 1.2. EC Coordination Law between Germany and Austria moreover formed the subject of a complementary sem- EC coordination rules governing social inar. These events, organised by one of the security – currently embodied in Regula- Institute's researchers (Schulte), sought both tions (EEC) Nos 1408/71 and 574/72, and to depict and to criticise the new Regulation. due to be consolidated in Regulation (EC) A further aim was to debate the difficulties No 883/04 and its implementing Regulation of its application, also as regards the fram- – have always formed a core area of the In- ing of the implementing Regulation. At the

24 II. RESEARCH

same time, representatives of social security lation, with a prime view to the provisions institutions exchanged views on practical ex- impacting German statutory pension insur- perience gained in executing the EC coordi- ance. nation rules. Bernd Schulte

1.3. Health and Social Services in the Internal Market

The more recent case law of the ECJ on the cross-border provision of and access to medical services has added a new dimension to European health legislation. This has triggered considerable debate, especially with a view to medical services rendered by non- national physicians. Thus, the most frequent issues are: whether the national legislator may in such cases subject cost refunds or, where applicable, the direct award of in-kind benefits to an approval procedure; how information, advice, warranty and legal protection can be ensured within the scope of cross-frontier health care provision; and how compliance with quality standards can be guaranteed. As a consequence of the "Decker/Kohll" This debate has gained even more mo- case law of the ECJ on cross-border access mentum through the adoption of Directive to health care services, the prerequisites un- 2006/223/EC on services in the internal der which persons covered by German statu- market. The Directive, which the member tory health insurance (SHI) can use health states must implement by the end of 2009, services provided in other EU member states is part of the Lisbon Strategy proclaimed by was a highly topical issue in these seminars. the European Council in 2000. By passing the GKV-Modernisierungsgesetz [SHI Modernisation Act], the German leg- Health care and social services of general islature has transposed the corresponding interest constitute essential components of legal provisions of Community law, so that the member states' social protection systems it is now up to the Health Ministry as well and, hence, of the European social model as as benefit funders and providers to fill these a whole. Recent years have moreover wit- new legal options with life. nessed changes to the understanding of state tasks in the health and social policy sphere In 2007, collaboration between scholars and as well as to the performance of these tasks. practitioners at these seminars also resulted In the past, social services of general interest in a publication on the reform of EC coordi- were largely shaped by the state (in Germany, nation law (Reform des Europäischen koordi- by the local authorities) in directly satisfying nierenden Sozialrechts. Von der VO (EWG) these elementary requirements of common Nr. 1408/71 zur VO (EG) Nr. 883/04) edited welfare. In the course of the 1990s, the so- by the Deutsche Rentenversicherung Bund cially intervening welfare state has turned in- and this Institute. The volume begins with to an activating and cooperating social state, an introduction on EC coordination law, re- but also one with a leaner government. The tracing legal developments since 1958. Sub- social-benefit-providing state is thus threat- sequently, the planned reform is discussed ening to mutate into a "benefit-guarantee- in commentaries penned by authoritative ing" state that seeks to sustain an adequate experts from the academic community, the level of social goods and services provision government administration and social secu- by entrusting third parties with these tasks rity institutions. A major part is devoted to instead of performing them itself. Such a a synopsis of the former and the new Regu- state may then confine its actions to regulat-

25 REPORT 2006-2007

ing and controlling these third-party activi- ings, which are difficult to forecast in terms ties and, where necessary, to refunding the of their reasoning and effects. An especially expenditures arising from the performance contested issue is whether it is still permis- of general welfare duties. This development sible to restrict the so-called country-of-ori- towards economisation and privatisation gin principle. This problem was analysed by has inevitably led to heightened interaction means of comparative investigations into the between pertinent welfare state activities respective situations in the member states. and Community law, given that health and The findings were discussed in a Commis- social services – to the extent that they are sion working group and documented in a economic in nature, which is increasingly paper held on this subject at a conference the case – form part of the European single organised by the Austrian EU Council presi- market, an "area without internal frontiers" dency and the Commission in April 2006. in which the free movement of services is guaranteed. In dealing with this subject matter, jurisprudence is ultimately looking for ways to guar- That cross-border health and social services antee the legal certainty expected by fund- themselves have so far been comparatively ing institutions, service providers and Union low in demand, even in the most open "eure- citizens, and simultaneously to balance the gios", and that also cross-border cooperation legitimate concerns of the Commission with between funding institutions and providers the interests of the member states. While remains fairly underdeveloped, is not solely the Commission is striving to complete the attributed to the territorial foreclosure of internal market, the member states wish to member state social systems. Although sys- safeguard their traditional "social state ar- tem foreclosure still constitutes widespread rangements" for services of general interest practice, despite the "de-territorialisation" of on behalf of their citizens – that is, to ensure service provision under EC law in the wake the accessibility, affordability, quantity and of the economic fundamental freedoms, the quality of these services for everyone. The prevailing circumstances are also due to the emergence of a European corpus of socio- specific nature of the services themselves, economic law thus seems to be in the offing, which are bound to regional, local, personal the contours of which nevertheless remain and cultural conditions and presuppose a re- ambiguous. lationship between providers and beneficiaries. These factors restrict the "exportability" During the German EU Council presidency, of services and likewise make their "import" a volume whose publication was funded by appear less attractive. the (German) Federal Ministry of Family Affairs, Senior Citizens, Women and Youth In presenting its first draft for a Directive on was presented on the subject of globalisation services in the internal market in 2004, the and the European social model (Linzbach/ European Commission had taken another Lübking/Scholz/Schulte, Globalisierung und definite step towards completing this mar- Europäisches Sozialmodell, 2007). It deals ket. In 2006, however, under pressure from with the effects of international law and in- the European Parliament and several mem- ternational policy "beyond Europe" on the ber states, notably France and Germany, German social state and on the European the Commission re-submitted a modified social model. The European social model is proposal that exempted health benefits and thereby understood as the epitome of values most of the social services from the substan- which make up a social Europe and which tive scope of the Directive. Yet this does not have been enshrined in the Charter of Fun- mean that Community law does not apply to damental Rights of the European Union these services, given that they are directly (Nice, 2000). After the failure of the Treaty subject to the freedom of establishment and establishing a Constitution for Europe, the service provision entrenched in the EC Trea- Charter is to become legally binding through ty, which in turn "constitutes" the "European the Reform Treaty of Lisbon agreed by the association of states" [Europäischer Staaten- European Council in October 2007. verbund]. Sufficient scope is thus left for the Bernd Schulte adoption of other legislation by the Europe- an lawmaker as well as for future ECJ rul-

26 II. RESEARCH

1.4. Pharmaceuticals in the Internal thorisation, trade, distribution and distribu- Market tive channels to pricing, reimbursement and price regulation. Pharmaceutical products are an extremely important commodity in the internal market Following an introduction from the vantage and as such form the subject of both second- points of Community law (Schwarze) and so- ary Community legislation and the member cial law (Becker), the multi-faceted nature of states' benefit legislation. The conflict, al- the theme was already highlighted in the first ready in full swing in the national realm, is paper on "possibilities and limits of a single characterised by economic and competitive market for pharmaceuticals" (Roth). In the concerns vis-à-vis the objective of (solidarity- field of (decentralised) market authorisation based) general health care delivery in terms law, the possibilities for establishing a single of service provision and pricing law. This market have largely been exhausted. Nation- conflict has now also become manifest on al provisions governing distribution do not a European level. In transcending national stand in the way of the single market, where- court rulings, numerous ECJ judgments il- as price and reimbursement regulations are lustrate the special role of pharmaceuticals especially apt to enhance market imperfect- within the conflicting field of national social ness. National cartel and trademark laws, on law and Community legislation governing the other hand, are aligned with the require- the internal market. In particular, the in- ments of the exhaustion principle; however, creasingly competition-oriented reforms to the application of cartel law should take statutory health insurance law constantly fu- greater account of the peculiarities of the el new disputes, which are both topical and pharmaceutical market. fundamental in nature. The subsequent statement on the crucial issue of distinguishing between pharmaceuti- This was the subject matter of the XIXth cal and food products, in both practical and Academic Colloquium held by this Institute legal terms, put a spotlight on the complex in collaboration with the Wissenschaftliche interplay between member state and Com- Gesellschaft für Europarecht under the title munity legislation on the legal status of phar- "Arzneimittel im Europäischen Binnen- maceuticals and foodstuffs (Doepner). This markt" [Pharmaceuticals in the Internal area is fraught with uncertainties, for exam- Market]. The event took place in Munich on ple as regards the interpretation of national 1 and 2 December 2006, and was attended law in conformity with Community law, but by scholars and practitioners from the fields also with a view to the dynamic updating of of Community law and health law. Community legislation. The prime focus of the colloquium was on The price rules embodied in the Arz- the EC fundamental freedoms, notably the neimittelgesetz [Pharmaceutical Act] and free movement of goods, and on the prob- the Arzneimittelpreisverordnung (AMPreisV lems of classifying price regulation as an [Pharmaceutical Price Ordinance]) as well equally effective measure. The justification as the standardisation of pharmacy sales of potential obstructions was also addressed prices in conformity with national conflict- in that context. Importance was thereby at- of-laws provisions also apply to non-national tached to the distribution of competences pharmacies that supply drugs to consumers between the Community and its member in Germany (Mand). The Teledienstgesetz states. Additional basic questions concerned [Teleservice Act] and the E-Commerce Di- the application of European competition and rective do not change anything here. The ap- cartel law to the relations between sickness plication of the AMPreisV does not infringe funds and service providers (in the narrower upon the free movement of goods; it is, in sense) as well as pharmaceutical companies. any case, justified. Another key topic centred on problems of The cultural and professional fundaments secondary legislation in connection with the underlying "the role of pharmacies in the various Directives on transparency, phar- supply of drugs in the internal market" maceuticals and public procurement. This formed another main point of emphasis broad field of investigation reflected the sig- (Tisch). For reasons of security, quality and nificance of pharmaceuticals in the internal functionality, the status of the "health pro- market, and ranged from production and au- fession" needs to be strengthened in the face

27 REPORT 2006-2007

of unrestricted liberalisation. It is moreover sibility of applying EC competition law also felt, for example, that one-stop hospital care to the provider relationship was postulated. delivery or the prohibition of pharmacy op- This appraisal is based on the correlation of eration by non-owners, both of which have service and premium diversification under been challenged by Community law, must be the most recent reform initiated through sustained. ECJ judgments on the admissibil- the Gesetz zur Stärkung des Wettbewerbs in ity of restraints of competition and on pos- der gesetzlichen Krankenversicherung [Act sibilities for prohibiting mail-order business on Strengthening Competition in Statutory for prescription drugs lastly testify to an ap- Health Insurance], notably with a view to in- propriate degree of sensitivity on the part of tegrated care contracts and discount agree- Community law in this context. ments. Community law provisions on cost-benefit assessments and fixed prices in the drug supply sector were the subject of the subsequent remarks, which referred to European cartel law and the so-called Transparency Directive No 89/105/EC (Kingreen). Ultimately, the effect of Community law on the steering of drug legislation is not only weakened by the lack of a concrete commitment to cartel law. Rather, it remains a task of the – often reluctant – national legislators to ensure competition, transparency and procedural justice. At this point, a stand was taken (Hess) on the personnel-based legitimation of the Gemein- same Bundesausschuss [Joint Federal Com- mittee]. The advantage of basing Commit- tee membership on skilled decision-making competence instead of relying solely on ministerial orders was stressed, as was the supervisory role of the Federal Ministry of Health. The powers of the Committee in the field of drug provision were then outlined, addressing the formation of fixed-price categories as well as the adoption of resolutions based on efficacy assessment, which is to be further developed towards cost-benefit analysis. The instruments of action are deemed practica- ble and, on the whole, positive for the purposes of sufficient, expedient and efficient drug supply. The final paper was devoted to "steering and steering errors in the drug supply sector" (Vorderwülbecke). In opposition to the The next contribution examined the inter- preceding remarks, the Joint Federal Com- pretation of a German social law regulation mittee is said to face structural as well as that impedes the free movement of goods practical obstacles in a densely regulated enshrined in Article 28 of the TEC (Sichert). environment. The Committee must more- Under this regulation, producer discounts over cope with "competing cost contain- initially granted by pharmacies are refunded ment ideas". The point no longer appears by pharmaceutical companies. Nevertheless, to be self-governance but a form of remote according to the consistent practice of the administration that burdens pharmaceutical German social courts, these refunds are not companies, as is shown by the examples of granted to non-national mail-order pharma- fixed-price-category formation and drug ef- cies operating within the EU (which allow ficacy assessment. additional discounts). In addition, the pos-

28 II. RESEARCH

All in all, the essays show in what ways EU complaint against another member state for member states continue to act as "rulers over not complying with contractual obligations health policy" (Berg) – a domain which in and may request an investigation of the mat- light of current developments continues to ter. Employer and employee associations are bear considerable potential for conflicts. An- also permitted to lodge complaints. The di- other finding illuminates the scope for a con- verse procedures for monitoring governmen- cordance-oriented perception of (social law) tal implementation duties raise a number of regulations in favour of quality, security and questions. In addition, there appears to be efficiency, on the one hand, and the exten- a rising tendency to adopt social standards sive realisation of market freedoms, on the with "unspecific legal foundations" – that is, other. Profitable insights are furnished into legal foundations whose primary purpose is the details and interlocking aspects of the not to protect minimum social standards. In laws governing drug supply and drug trade. view of the increasing globalisation of trade Moreover, the foundations (in terms of le- and economic relations, another ever more gal doctrine) of health law and Community prominent question is how world trade law law, notably the free movement of goods, can be utilised for the enforcement and have been portrayed and questioned with a monitoring of social standards. view to their application. The contributions to the colloquium are available as a publica- The first part of the newly presented study tion: Schwarze/Becker (eds.), Arzneimittel im contains firsthand reports of German repre- Europäischen Binnenmarkt, Europarecht sentatives on the supervisory committees of (EuR), Beiheft 2/2007, Baden-Baden, 2007. international organisations. Problems as well Markus Sichert as solutions are thus depicted for the implementation of the International Covenant on Economic, Social and Cultural Rights (Riedel, 1.5. Internationalisation Schneider), the European Social Charter (Birk, Öhlinger), and the social conventions The Implementation of International of the International Labour Organization Social Standards and the Council of Europe (Nußberger, Hel- ler). The second part of the study is devoted A study on international standard-setting to contributions that describe developments activities in the field of social law was pub- in the area of unspecific legal foundations lished in the period under review: Becker/ with a view to the implementation of social von Maydell/Nußberger (eds.), Die Imple- standards: the European Convention for the mentierung internationaler Sozialstandards, Protection of Human Rights and Fundamen- Zur Durchsetzung und Herausbildung von tal Freedoms (Grabenwarter), the American Standards auf überstaatlicher Ebene, Baden- Convention on Human Rights and the Afri- Baden, 2006. can Charter on Human and Peoples' Rights (de Wet), as well as the legal instruments of Upon ratifying international conventions, the EC/EU (Becker, Iliopoulos-Strangas). An- member states are obliged to implement the other focus is on social standards of the world social standards, which are thus transposed trade system (Blüther). By including unspe- into national law. The contracting states' cific legal foundations, the subject matter compliance with these implementing duties has been broadened and supplemented by is monitored and controlled by a variety of the implementing mechanisms of powerful procedures. The majority of international "meta-national" organisations. conventions moreover require that member states report on their progress in incorporat- Further Development of International ing the relevant international social stand- Social Standards ards into law and practice (reporting procedure). The task of reviewing of these reports Instruments of international social law and is usually entrusted to expert committees. individual social standards were the subjects A variety of complaint procedures enable of several projects. For instance, the project member states to participate in the moni- on "right to health", launched in 2007, toring process. Thus a member state of the sought to illuminate not only the national International Labour Organization may file a law of several states but also the Interna-

29 REPORT 2006-2007

tional Covenant on Economic, Social and a global social order (more detailed I.2.4.). Cultural Rights (cf. II.4.2.). A contribution This task is as innovative as it is difficult, and for the second edition of the Encyclopaedia it is faced with misgivings that render it uto- of Public International Law deals with the pian and that foresee its failure on account European Social Charter (Becker), depicting of economic constraints, political calcula- the development, content and mechanisms tions or lacking legal means. Perhaps that of social rights protection in Europe. The is also why this task has not, to date, been treatise moreover criticises the fact that two tackled by any research institute worldwide different versions of the Charter are currently as a comprehensive project. in force and makes a case for the clear commitment of all member states of the Council The Institute has therefore decided to take a of Europe to fundamental rights. In doing tentative step and to look more closely at the so, contracting states should relinquish spe- opportunities and risks of such a project in cificities and ambitious statements so as to order to gain an overview of existing research permit the prospective inclusion of content- approaches. To that end, it held a workshop related amendments. The collective com- in December 2006 that served the purpose of plaints procedure does not appear suitable exploring avenues of jurisprudential access. because it is directed at collective bargaining A supplementary interdisciplinary workshop parties. In the long run, individual rights to a took place in January 2007 and was followed review of contracting party obligations ought by two single presentations in the spring of to be conceded, even though this demand is that year. not likely to be fulfilled. The "Workshop on the State of Research in- The adjustment of international social stand- to a Global Social Order and Possibilities for ards to changing circumstances is also gain- its Further Investigation", held in December ing importance within the International 2006, confirmed that the investigation of a Labour Organization. The most important global social order constitutes a novel ap- instrument for the protection of social rights proach that transcends the traditional un- here is the Social Security (Minimum Stand- derstanding of social law and public inter- ards) Convention No 102. In light of current national law (Marauhn). Any such research reforms to social protection systems in devel- approach must therefore include national oped countries as well as the need for build- and international law since a global social ing new systems in developing countries, order does not merely involve pure coordina- this Convention, dating from 1952, is in tion law. In addition, research into a global danger of forfeiting its function as a univer- social order is highly complex and affects sal framework for appropriate social security several dimensions: legal aspects, economic (cf. more detailed I.2.2.). Reform proposals necessities, societal issues, political precon- are currently being prepared with the help of ditions, the relevant actors and state inter- scientific experts from all parts of the world. ests. Besides addressing the states and inter- This process is still under way, however, and national governmental organisations, such it is not yet foreseeable whether it will ac- research must also seek to embrace non- tually result in the submission of concrete governmental organisations, and its overall proposals for redrafting existing ILO social objective can only be accomplished through standards. the interplay of international law, private law and public law. Another workshop pa- Research on a Global Social Order per spotlighted the activities of international organisations such as the United Nations, Individual states are finding themselves un- the World Bank, or the International Labour able or insufficiently able to cope with the Organisation (Nußberger). The protection increasing transnationality of social affairs of human rights, international social stand- by means of their existing national systems. ards and bilateral agreements can support It follows that classic tasks of the welfare attempts at creating a system for a global state must be pursued on an international social order. An example of a feasible legal level within an appropriate framework. The approach is seen in EC coordination law, yet attendant aim is to elaborate universal values it must be noted that the legal fundaments and institutions that lay the foundations for in developing countries are not comparable

30 II. RESEARCH

to those in Europe. One possibility would research on education, international organi- be to create an international framework and sations, development aid policies, migration to influence individual states by setting in- and migrant workers. Especially when ad- ternational standards. The drafting of such dressing the subject of migration, it proves legally binding standards could be entrusted helpful to bear in mind social integration as to the existing international organisations, well as political and economic aspects along- while at the same time seeking to modify the side the legal issues (Palme). legal instruments already in place or simply to enforce them more emphatically. The final In March 2007, two lectures were given on workshop paper primarily regarded research the risks and opportunities involved in re- into a global social order as a question of searching a global social order. One paper the effective protection of universal human emphasised the approaches taken by sociol- rights, stressing the considerable practical ogy and legal philosophy on issues of com- and political difficulties inherent in such a bating poverty and global justice (Pogge); the venture (Scheinin). Thus a global order al- other placed the creation of a global adminis- ready exists, but will naturally always come trative law and means of structuring such an up against its limits where national interests endeavour in the foreground (Krisch). and the sovereignty of individual states are in the foreground. This problem, which ap- In his lecture, Pogge stressed that a global plies to any worldwide order, does not of social order must be regarded as comple- course stop at the investigation of a global mentary. It will not suffice to construct new social order. This is shown, for instance, by social institutions; rather, existing institu- the International Labour Organization, nota- tions together with new ones have to be bly its Convention No 102, which has set in- integrated into a common global regime. ternational standards whose implementation An initial approach could be attempted via and enforcement nevertheless reveal distinct human rights, which constitute a necessary weaknesses. The economic constraints of but insufficient prerequisite for a global so- global competition and the interests of a glo- cial order. Human rights can shape the in- bal economy tend to push social aspects into dividual demands placed on an institutional the background in a worldwide context. order. In his remarks on global justice, Pogge emphasised the crucial role of combating The second workshop held in January 2007, poverty. Distributive problems, mounting whose wider reach extended to general is- inequality between rich and poor, as well as sues addressed by the social sciences and the lacking fulfilment by affluent states of interdisciplinary research, was likewise de- their obligations towards those less well off voted to the subject of a global social order. are the core issues here. The responsibility Its participants stressed the central role of of wealthy state governments for existing de- internationality alongside that of interdisci- ficiencies is obvious, and is exemplified by plinarity. Accordingly, interdisciplinary re- their reticence towards dictators and global search approaches must be viewed under the corporations in such issues as preservation aspect of a "global social policy" on account of power and intellectual property rights for of worldwide interpenetration. A great many pharmaceuticals. international standards and norms on social security exist, but the decisive point is that Krisch devoted his lecture to the administra- they must be given more attention in soci- tive and organisational structures of solidar- etal, political and legal practice (Leisering). ity-based systems within a global context. Besides stressing state responsibility, it is im- Besides international orders, the legal re- portant to elaborate the roles of corporations gimes of individual states and regions must and other actors such as non-governmental also be taken into account when reflecting organisations, who are able to contribute to on a global right to social security. The sig- private forms of regulation. Worth noting, nificance of the informal sector features very Krisch says, is that the term "social global prominently in projects that focus on de- law" is preferable to "global social law", with veloping countries and their social systems "soft law" playing a major part in this con- (Mares). It was acknowledged that interdisci- text. Above all the social dimension of public plinary approaches can be pursued for global international law must be emphasised. The

31 REPORT 2006-2007

legal norms and principles of participating tal Health Care", which has now largely been organisations and institutions, such as the completed. The study is conceived as a Ger- International Labour Organization and the man-American co-project between this In- World Trade Organization, could gain added stitute and the Institute of Government and significance here. Public international law, Public Affairs of the University of Illinois. In global administrative law and social law are an approach based on comparative law and thus the decisive legal fields for researching transnational reflections, the project seeks to a global social order. shed light on competitive instruments as well as on functional and steering modes in the In sum, all participants stressed the mean- health care sectors of Germany (Sichert), the ingfulness and great significance of investi- Netherlands (Walser), Switzerland (Ross) and gating a "global social order" as well as the the United States (Rich). The investigations difficulties that need to be coped with along are embedded in introductory and funda- the way – not to speak of the problems of mental thoughts on the relationship between successfully establishing such a new world competition and regulation as conceptions of order. normative steering in the health care sector Ulrich Becker / Yasemin Körtek / (Becker). The resultant findings are currently Matthias Knecht being processed in a comparative analysis. The publication will include expertises delivered by renowned economists in the form of statements on each of the investigated coun- 2. Changes in Developed tries. The underlying intent is to enrich the States subject matter through interdisciplinary reflections on the concordance and disparity of key issues, the significance of legal findings New Forms of Regulation and Activation from an economic perspective, and economic approaches to decisive steering modes. 2.1. Choice and Competition in Hospital Health Care Notwithstanding the particular cost intensity of services rendered in the hospital sector, The organisation of hospital health care the study takes account of the fact that the is increasingly guided by a mix of regula- proportion of ambulatory hospital services tory and competitive concepts. Especially varies markedly in the respective countries. within Europe and in obligatory or so-called How these services relate to other areas of basic social security systems, competition ambulatory care, including the relevant fi- is primarily used as an instrument for ac- nancing structures, must likewise be con- complishing welfare-state allocation effects sidered, as must organisational pluralism and tends less to be pursued as an intrinsic and the diversity of funding institutions. value within a freely constituted society. The Even when influenced by competition, purpose-oriented autonomy assigned to the hospital care moreover tends to be attested actors involved is on its part subject to regu- weak characteristics of quality management. lation needed to safeguard solidarity, but also Low volumes of (public) investment lead to to ward off impediments to "health care mar- short-windedness, and sectoral boundaries ket" activities. This largely imperfect market between ambulatory care, the in-patient is thus unique and, together with its sub- treatment of acute cases and rehabilitation markets, is both an expression and a subject phases impede integrated care flows. of complex steering systems. To embark on a comparative law analysis of these steering The analysis of normatively founded steer- mechanisms renders a host of interesting in- ing concepts based on competitive incentive sights that are of especial significance to the functions starts off with the actors affected cost-intensive hospital care sector. by them. The corresponding market relations illustrated in the study differ in the extent to It is in this sense that the hospital care sector which they are (im)perfect. At the heart of served as the starting point for research activ- these relations lie incentives and the differ- ities based country reports, under the project ently structured rights of patients who act as entitled "Choice and Competition in Hospi- "consumers" in choosing a hospital and who

32 II. RESEARCH

opt for a funding institution based on, say, a transferability of the relevant approaches to hospital-specific care concept. Competition other systems. Thus, the diversification of for contracts, or also price competition, cen- insurance benefits and pricing aspects are tres on the relations between funding insti- often distinguished in terms of (standard) tutions and hospitals. Inter-hospital relations basic coverage on the one hand – whether correlate with the choices made by insured rendered by private insurance undertakings persons, who are likewise the reference point (Netherlands) or in the form of obligatory infor competing funding institutions. surance (Switzerland) – and co-existing supplementary insurance markets on the other Competition as an instrument and control- hand. At the same time, market-like struc- ling device of normative steering is merely a tures within statutory/obligatory insurance segment within a network of steering mecha- must be identified and examined to ascertain nisms that may also be regulatory in nature. whether the actions of funding institutions Keeping track of this duality or interaction is potentially make them undertakings. just as important as acknowledging the fol- In this connection, problems concerning lowing: the necessity of differentiating be- functional and competitive structures in the tween normative and administrative steering; health care sector revolve round the core is- the potential double-function of (regional) sue of applicability of competition law – an corporations as addressees and norm-setting issue which arises in all of the countries in- bearers of responsibility; the addressee status vestigated and must be treated differently of corporatist associations; and the plurality depending on the respective sub-markets. and, in some cases, hierarchy of steering ob- According to substantive law, institutional jectives. Especially patient rights to choose a reorganisation processes entail additional hospital have shown how efficiency-specific problems for the relations between authori- competitive criteria frequently coincide with ties supervising funding institutions and hospital planning aspects. those supervising competition. An interesting example of awareness for "practical co- The aim of analysing action potential as well operation arrangements" is again found in as normative incentive and steering mecha- the Netherlands. nisms, and of assessing the results along comparative lines, made it necessary to identify The "success" of normative steering via com- systemic conditions that permit a conceptual petition can be assessed by looking at the

33 REPORT 2006-2007

to improve the patient's decision-making ability in the sense of (striving for) an elimi- nation of informational asymmetry. Com- petition and regulation may thus appear as components of causally interacting steering approaches. This is also underscored by the (competition-distorting) influence of highly regulated hospital subsidisation or one-sided investment support by individual regional authorities.

Organisational concepts of hospital care involving a regulatory-competitive mix are even found in the field of so-called managed care (MC), with Switzerland playing a pio- neering role in MC development in Europe. Regardless of any autonomous self-commitment of the parties involved in such MC models, regulations such as the "any willing functions assigned to competition in health provider statutes" (United States) serve to care delivery systems, notably the func- counteract competitive concentration ef- tion of guaranteeing a general level of care forts on the supply side. MC organisations through economic efficiency and quality. In are obliged to contract in favour of all or cer- light of the findings on the welfare-promot- tain groups of providers who are willing to ing steering potential of competitive instru- accept the prevailing contractual terms and ments, the study illuminated the extent to conditions. The application of (European) which competition is, or could be, incorpo- public procurement and competition law rated into health care systems as a genuine to integrated care contracts (Germany) re- steering criterion. mains contested. Finally, in view of the results achieved, the "regulation of competition" must be ap- Even so, increasingly competitive activities praised in terms of whether competition can on the part of social-insurance-based sick- prevail within its conflicting relationship to ness funds are progressively spreading into regulation, or even develop into the central the realm of competition law traditionally steering approach of the future. Competition reserved for enterprises. For the time be- and regulation need not be regarded as mutu- ing, however, competition in social security ally exclusive antinomies. For example, price systems often tends to focus on structural regulation leads to competition for quality, advantages within the regulatory process. rationalisation, specialisation and quantity Notwithstanding causally linked steering (including the steering of supply streams). approaches, the notions of competition and The reimbursement of hospital services is solidarity have not yet become fully compat- increasingly standardised on the basis of di- ible. The decisive normative structures that agnosis-related groups (DRGs), which are need to be investigated further, now and in found in partly differing forms in all of the the future, are both an expression of this countries investigated. Price competition is finding and a reason for securing and elabo- ruled out here, however, if these groups and rating concepts of "solidarity-based competi- (case) values are uniformly defined country- tion regimes". wide. Conversely, it exists where individual Markus Sichert reimbursement negotiations are permissi- ble, such as in the B segment for 10 percent of the Diagnose Behandeling Combinaties 2.2. Perspectives of Integrated Care and (DBCs) in the Netherlands, or where vari- Competition ables may be incorporated. Competition for quality can likewise be regulated by means of After a somewhat halting start, the integrat- substantive requirements, such as the duty ed care of insured patients in Germany has to publish quality reports. Such reports serve become increasingly well-established and

34 II. RESEARCH

is still growing in importance. The current Subsequently, the Community law provisions health reform is aimed at intensifying this in the field of integrated care were eluci- form of care delivery – on the one hand, by dated, with three essential aspects placed in prolonging start-up financing and creating the fore (Sichert). First, the cross-border and incentives for area-wide coverage and, on trans-sectoral possibilities for including non- the other, by including long-term care in this national providers in integrated care con- integration concept. Hence, a more detailed tracts were discussed, this being of especial investigation of this theme seems expedient relevance to foreign mail-order pharmacies from the viewpoints of both academic theory and medical rehabilitation abroad, as well and practice. With this in mind, the Institute as to border-area cooperation agreements. organised a conference on 19 April 2007 that Second, an outline was given of both the was not only directed at representatives of relevant secondary Community legislation the academic community but also called on – notably the Directive on the recognition of the participation of practitioners. The event professional qualifications, the Directive on was devoted to two core subjects: "health public procurement and the Regulation on care reform and the influence of Commu- the coordination of social security systems nity law" and "competition within the scope – and the fundamental freedoms and compe- of integrated care". tition rules embodied in primary Community law. As for EC competition law, its substan- The programme commenced with a compar- tive scope has evidently become applicable ative law overview of the structures of trans- in a number of case constellations. In this sectoral and interdisciplinary care in the context, the personal scope of Articles 81 Netherlands, France, Switzerland and Italy et seq. TEC poses difficulties in the sense (Walser). It soon became clear that the fun- of whether sickness funds qualify as under- damentally differing national health regimes takings. Third, the lines of integrated care have resulted in highly divergent integrated development in Germany were highlighted, care structures and, hence, allow only very accompanied by a short glance at expected limited conclusions to be drawn for the Ger- changes (Knieps). The promotion of quality- man situation. The most distinct similarities based competition requires improvements were observed between the Dutch and Ger- to structural risk adjustment as well as the man systems, whereas the Italian National accelerated extension of new care forms in Health Service scarcely displays any ele- order to cope with simultaneous over- and ments of integrated care. under-coverage or with the often very poor

35 REPORT 2006-2007

results of morbidity and mortality surveys. MVZ involves pros (classic ambulatory–in- One cause for these developments is seen in patient–ambulatory treatment path; plan- the frictions arising at sectoral boundaries. ning reliability for hospitals; participation That is why integrated care is felt to be of in integrated care programmes) as well as crucial importance, even though the corpo- cons (uncertainty about future structures ratist structure of the system and the central of ambulatory care; fewer referrals by prac- role of professional law in Germany consti- tice-based physicians; lacking management tute considerable obstacles. skills) – both of which need to be weighed on a specific basis. The second group of themes was devoted Quirin Vergho / Christina Walser to the steady expansion of competition into the health care sector. Competition for contracts both between sickness funds and be- 2.3. Interdisciplinary Research on tween benefit providers was one issue here. Competition in the Health Care The first paper on competition for contracts System between sickness funds in the field of integrated care queried whether the integrated Competition in the health care system con- care efforts undertaken by the legislator do stitutes an important field of research, not adequate justice to the given requirements only because it is highly topical, but because (Kaempfe). The paper identified major short- it impacts both the economy and society. In comings in the health care sector (under-, analysing the complex possibilities for struc- over- and mal-coverage; high costs; excessive turing competition as well as its system-in- complexity) along with their causes (sectoral herent limitations, one must go beyond legal divisions; pure price competition), and ex- approaches and seek the know-how of other plained how competition for contracts could disciplines. Prospects for such an in-depth eliminate these grievances (overall concept investigation on competition in the health of competition; deregulation as a means of system were sounded out in a workshop held triggering discovery processes). at the Institute on 19 December 2007. The The corresponding paper on contractual aim was to engage in an interdisciplinary competition between integrated care provid- exchange of views and to elaborate perspec- ers took a critical stance on the introduction tives for a joint project. of increased competitive elements because these elements are thought to raise costs The health system's legal structures are gen- (Scholz). From the point of view of service erally criticised because they largely suppress providers, the health care system exhibits competition, tend to partition-off systems, reasons both in favour of participation in in- and pose problems of democratic legitima- tegrated care (higher remuneration of physi- tion (Becker, Kingreen). New problem areas cians; securing of referrals; savings through have been created through the renunciation reduced documentation) and against it (un- of collective contracts and the shift to in- certain rates of return in the face of further tegrated and trans-sectoral care, as well as reforms; contract periods; termination mo- through the contested applicability of public dalities; succession; IT costs; professional procurement law, cartel law and Community re-qualification). law as legal frameworks. Another question is whether existing legal regimes (governing The thematic block on competition law was competition) can be applied, or whether the concluded by a presentation on the organi- specific case of "health-sector competition sational structure of so-called medical care law" requires its own new legal frame. centres (Medizinische Versorgungszentren, Based on efficiency deficits attributed to MVZs) existing in Germany (Möller), fol- lacking competition in the health care sector, lowed by a discussion on the basis of two these issues were illuminated from a social- statements (Seifert, Schinz). It was stressed and political-science perspective (Gerlinger). that MVZs constitute a relatively new form Competitive instruments in this sector can of care organisation and play a major role in lead to more freedom as well as to the in- the area of integrated care. Thus, 25 percent troduction of prospective, trans-sectoral re- of all MVZs participate in such contracts, imbursement schemes. In the process, care and two-thirds plan to do so. Setting up an delivery to the patient must remain a central

36 II. RESEARCH

aspect. In addition, the interplay between insurance". Dutch lecturers informed the economic incentives and health-oriented ac- over 80 participants from the fields of sci- tion must be given more weight. ence, politics and practice about the most re- From the economic point of view, competi- cent reforms to the Dutch health insurance tion between health insurers certainly entails system, thus presenting an ideal forum for greater cost efficiency and product diversity, the discussion of latest developments. This but must not neglect quality (Kifmann). At event was a consistent follow-up to the previ- the same time, the fairness of risk tariffs, the ous research conducted by the Netherlands premium risk inherent in such tariffs, and country section which had so far resulted in cost pressure (as an anti-pole to quality) con- various publications, visits to Dutch univer- stitute variables which cannot be left out of sities and discussions with experts from the the equation. Dutch ministry of health.

The individual contributions were followed by an avid discussion in which not only the workshop participants but also the Insti- tute's research staff and doctoral students took part. It resulted in the drafting of a structured concept for a potential research project. The legal subject matter centres on the regulation of new forms of action on the part of sickness funds through the framing of individual contractual relations with providers. Interesting social-science issues include the transformation of sickness funds into market actors, the avoidance of negative effects of competition on the health sector, thereby taking account of experience gained in other countries, and steering perspectives for the prevention of social inequality and for improved health care delivery to socially underprivileged persons. These thematic approaches must be confined to individual sectors, given that the sectoral divisions existing The Dutch Health Insurance Act and the in Germany are likely to remain intact in the Act on State Subsidies for the Financing of coming years. Health Insurance, both of which entered into force on 1 January 2006, confronted the After a detailed project outline has been Dutch population with profound changes. drafted, the envisaged lines of research are The previous dualism between statutory and to be merged in an additional workshop de- private health insurance was replaced by the voted to joint issues. Beyond the planned uniform basic coverage of all Dutch inhab- participation of social law scholars, social itants, which is intended to combine social economists and health scientists, this circle compensation with the flexibility of private might be extended by health care research- insurance. Of prime interest from the Ger- ers and/or competition lawyers. As to the man vantage point is the previous Dutch sys- regulation of new courses of action taken by tem's striking resemblance with the current sickness funds, the researchers involved are German health insurance structure, which currently working out a proposition for ap- is likewise characterised by the co-exist- propriate subjects. ence of statutory and private insurance, and Magdalena Neueder / Matthias Knecht is likewise subject to intense reform debate calling for a similar form of standard basic coverage. 2.4. Reform of Dutch Health Insurance Through this workshop, the Institute sought On 17 February 2006, the Institute held a to contribute to a better understanding of workshop on the "reform of Dutch health the Dutch reform, to illuminate diverse indi-

37 REPORT 2006-2007

vidual aspects of the restructuring processes, adjustment payments to insurers according and to promote discussions both within the to their policyholder structures. Another five academic disciplines as well as between percent of revenue derives from government scholars, policy-makers and practitioners. To subsidisation, which is taken to finance the be sure, the differing historical, sociological non-contributory insurance of children and and institutional backgrounds of a foreign le- youths. gal order call for caution in drawing conclu- The paper entitled "Übergang zu einer sions for another legal system. The particular flexibleren Gestaltung der Verträge in der novelty of the Dutch reform moreover results nie derländischen sozialen Krankenversiche- in a lack of secured empirical values. Even rung" [Transition to More Flexible Con- so, the highly interesting reforms observed in tracting in Dutch Social Health Insurance] our neighbouring country are hoped to en- highlighted the interchanging lines of devel- rich discussion over the future sustainability opment characterising regulation and liber- of German health insurance. Beyond that, alisation of contractual relations between the more recent history of the Netherlands' insurers, the insured and providers over the health and long-term care insurance paral- past decades (Velders). Despite all efforts to lels that of Germany like no other European make it more flexible, the health insurance country. sector clearly remains subject to extensive regulation. The regulatory authorities con- The subject matter was introduced by an tinue to play a central role in attempts to overview of core elements of the latest implement newly enacted flexibility meas- Dutch health insurance reform as well as its ures or to create additional free scope. This compatibility with the First Direct (Non-life) subject was also taken up in the contribu- Insurance Directive issued by the European tion on "Supervision and the Dutch Health Council (Walser). The new basic coverage is Insurance System" (Boelema). It introduced rendered by privately organised insurance the tasks and competences of the new Dutch undertakings, whose freedoms are neverthe- health competition authority, the Nederlandse less restricted by numerous specifications Zorgautoriteit, which is to supervise compli- set out in the public-law framework. De- ance with the new health insurance law and spite a host of detailed provisions governing, simultaneously to monitor and strengthen above all, the basic benefits package, care competition between health market partici- was taken to enable insurance undertakings pants. to distinguish themselves from one another The lecture on "Competitive Elements in in designing their benefits and the concomi- the Netherlands Reform of Health Insur- tant premiums. The legislator hopes that the ance" was largely devoted to the actual ef- resulting competition between insurers will fects of the reform and to prospective lines heighten efficiency in the health care sector. of its further development (Maarse). The pa- The paper entitled "Fragen der Finanzierung per pointed out a certain degree of asymme- in der niederländischen Reform des Kran- try as regards competition within the overall kenversicherungssystems" [Funding Issues system. On the one hand, competition be- under the Dutch Health Insurance Reform] tween health insurers for new customers is served as a basis for the reports of the Dutch very pronounced, as is shown by some two lecturers (Hamilton). In particular, the paper million policyholders who have switched detailed the three major funding elements of insurers since the beginning of the reform the reformed system. Thus, approximately year. On the other hand, hardly any compe- 45 percent of total revenue stems from flat tition takes place in the relations between mandatory premiums paid by the insured health insurers and providers or between themselves to their respective insurers, who the insured and providers – partly because determine these amounts autonomously. Low of the pertinent regulations and partly ow- income-earners are entitled to a government ing to prevailing market disequilibria. Yet it health allowance to mitigate social hardship is questionable whether competition con- if part of the flat premium is unaffordable in fined almost solely to insurers will entail the specific cases. About half of total revenue hoped-for increases in efficiency. The cur- is raised from the income-related contribu- rent average flat premium rate, which has tions paid into a health insurance fund by proven lower than the government expected, employers. This fund is used to make risk does seem to suggest this. The present pre-

38 II. RESEARCH

mium level might, however, also be partially some countries were conceived in times attributable to short-term subsidies granted when the employment situation was good, to insurers, who may have used these to gain and they were thus organised to meet the de- a good starting position on the market in the mands of a largely favourable labour market. critical early months of the reform. Income replacement benefits awarded in the event of unemployment were generally satis- The papers made it clear that the two new factory. Job-seeking difficulties were solved laws implemented in January 2006 definitely through well-adjusted promotional measures do not overhaul the Dutch health insurance that led to rapid reintegration in employment system from the ground up, but largely tie in markets with relatively high intake capaci- with elements of earlier reforms and develop ties. In the course of time, these protection them further. Now that the administrative re- schemes ceased to meet the requirements structuring process – also as regards govern- of labour market reality in view of persisting ment subsidisation of premiums – seems to levels of high unemployment. Their mode of have run off smoothly for the most part, pub- functioning sometimes became inefficient, lic acceptance of the reforms will crucially often also restricted, and the options for depend on the future trend in premiums. providing assistance in the event of unem- Christina Walser ployment diminished, especially those that sought to reintegrate unemployed persons. Many countries therefore strove to reform 2.5. Activation and Employment Promotion unemployment insurance and embarked on in a Comparison a restructuring or renewal of their specific regimes. This process was often accompanied High unemployment trends constitute a ma- by altered labour market and employment jor problem for many countries' social secu- policies. In recent years, a few countries have rity systems, notably unemployment insur- initiated policy measures and action plans ance. At the same time, unemployment poses which have come to be known under the term an immense challenge to society as a whole. "activation". Other countries have acknowl- The relevant social protection schemes of edged these programmes as exemplary mod-

39 REPORT 2006-2007

els, seeking either to adopt or copy them. The sites for employment promotion and their notion of "activation" requires a renunciation concrete implementation – must be subordi- of the pure insurance model as it existed in nated to a regulatory framework. some countries prior to the introduction of "activating measures"; however, the concept "Activation" as a legal term does not exist. can be realised in manifold ways. Although the term as such does appear in a few legal regimes, it is then used to designate In 2005, the Institute for Employment Re- either a very specific measure (e.g. activation search (IAB) based in Nuremberg and this of funds for employment promotion) or the Institute decided to launch a joint interna- general framework for diverse policy meas- tional and interdisciplinary research project ures aimed at job promotion and combating aimed at comparing different countries' la- unemployment. In the latter sense, "activa- bour market policy measures of "activation", tion" embraces all legal norms – or at least as well as their implementation of new ap- serves as a heading for them – that seek to proaches for the reintegration or initial inte- reintegrate unemployed persons in the la- gration of jobseekers or simply unemployed bour market and, quite generally, to promote persons unwilling to take up work. In 2006, employment. Hence, one result of the study the Institute for the Study of Labour (IZA) has been to acknowledge that "activation" is in Bonn joined the project, which has since as multifaceted as the legal systems investi- been carried out by the three institutions un- gated. Adopted solutions and modes of en- der the lead management of three of their forcement are similarly variegated and ulti- respective staff. mately reflect the diverse understandings of This international research venture differs the term. from other investigations on labour markets, In some countries the concept of "activation" employment policy and unemployment, as it is construed more narrowly and is taken to is unique in terms of both its subject matter mean the measures and rules designed to ac- – that is, "activation" as a means of promot- complish labour market reintegration, while ing employment and combating unemploy- in others it has a broader connotation. Thus ment – and its methodology. "activation" can, on the one hand, be linked exclusively to the legal norms governing em- The Term "Activation" ployment promotion in the strict sense. On the other hand, it can also be wide enough to A growing number of countries have adopted cover norms and measures that a priori have the principle of "no rights without responsi- nothing to do with unemployment, for in- bilities", which also falls under the concept of stance in the case of family benefit schemes, activation and demands a partial withdrawal certain labour law regulations, or tax law. from the general insurance principle. Yet in order to satisfy the equation, work must in Execution of the Study fact be available so that jobs may be created, thus allowing reintegration to become a real- An introductory and preparatory workshop ity. Activation can be understood as a joint held at the end of 2005 was devoted to de- form of employment-promoting action on picting and discussing guidelines of "activa- the part of both jobseekers and unemploy- tion" in the selected countries. These guide- ment insurance, although the former may, if lines served as the basis for elaborating the necessary, be forced into such action. Acti- major ideas inherent in the concept and for vation calls for close cooperation between preparing rough outlines of the country re- the benefit-providing institution and the job- ports. The second workshop took place in seeker in a mutual effort to enhance individ- 2006 and was entitled "(How) Does Activa- ual employment prospects; however, further tion Work? A Comparative Analysis". It was actors may be involved. The rights and duties able to build on the findings thus far ob- of jobseekers are thereby legally defined. In tained and permitted a closer look at the role any case, activation – whether in the sense of of law for activating measures. an extensive "activating strategy", the implementation of bundled measures guided by The study has brought forth country reports socio-political motives, or single measures on Denmark (Köhler, Kvist, Pedersen), France with the aim of establishing the prerequi- (Barbier, Kaufmann), Germany (Eichhorst,

40 II. RESEARCH

Grienberger-Zingerle, Konle-Seidl), Great when and how activating measures take ef- Britain (Finn, Schulte), the Netherlands fect, as well as the methods employed. Thus, (Sichert, Sol, Koning, van Lieshout), Sweden in some countries the promoting measures (Hemstroem, Köhler), Switzerland (Bertozzi, dominate, whereas in others benefit altera- Bonoli, Ross) and the United States (O'Leary, tions after a certain period of time are in the Quade, Dupper). These reports are preceded foreground. For instance, training offers may by an introduction including definitions, and replace cash benefits, and may or may not be are rounded off by a synoptic final chapter mandatory. Considerable disparity between furnishing a transnational comparison (Eich- the individual countries moreover exists in horst, Kaufmann, Konle-Seidl, Reinhard). Be- terms of the interdependence of differing le- sides the diverse socio-economic aspects and gal fields. Controls and sanctions are likewise relevant legal norms, a special focus is also important components of the individual re- on constitutional provisions in the respec- ports. The ultimate aim of the study is not to tive countries, as well as on the influences summarise problems and solutions for each exerted by international and Community law country, but to highlight individual solutions on the respective schemes of employment with reference to the respective country. promotion and labour market reintegration. Otto Kaufmann Each country report has been written by at least two authors. Two special features thereby give the entire project a "pioneer- 2.6. Mediation in Social Jurisdiction ing" status on account of their novelty. First of all, the composition of the author teams On 1 September 2006, the two-year model is interdisciplinary, so that each investigation project "Mediation in Social Jurisdiction" of a country's "activation field" takes both a was launched in Bavaria. From this date, legal and a socio-economic perspective. This the parties involved have been enabled to mode of procedure was also upheld for the participate in an internal court mediation comparative chapter, which thus comprises procedure following the filing of an action or elements of comparative law as well as a an appeal. Meanwhile, 68 mediation proce- comparative socio-economic approach. Such dures have been carried out. a pivotal involvement of legal scholars in a research project on "activation" – a realm of The Model Project study so far occupied predominantly by social and economic scientists – has evidently The Munich-based social court of first in- not been undertaken on a cross-national, stance, the Sozialgericht München, and the comparative scale so far. Secondly, this de- likewise Munich-based appellate court, the liberate innovative approach is reinforced by Bayerische Landessozialgericht München the likewise intended interdependence of (LSG), were among the courts participat- the disciplines. Consistently, the country re- ing in the model project. The Bavarian LSG ports are not composed of two distinct disci- moreover offers mediation for proceedings plinary parts; rather, the legal and socio-eco- pending in the social courts of Nuremberg, nomic aspects were, from the start, regarded Landshut, Bayreuth, Regensburg, Augsburg as interconnecting, inseparable and coherent and Wurzburg, thus permitting mediation concepts, and the respective findings have procedures across Bavaria. been presented accordingly. Putting this methodological procedure into action proved Mediation is a voluntary procedure that at- a quite difficult task owing to the different tempts to solve an existing conflict with the understandings of the procedure itself as support of a third person, the aim being to well as of the subject matter. do comprehensive justice to all interests involved. Altogether 20 judges have been Functions and Modes of "Activation" trained as mediators to preside over such proceedings. They are called upon to han- The functions and modes of activation dle matters of social law with which they were the main focus of the study, both for are not familiar as statutory judges. During the country reports and the comparative the project phase, mediation is conducted analysis. The individual reports deal with in co-mediation, meaning a second mediator the concept of unemployment and examine participates. As a rule, the competent court

41 REPORT 2006-2007

mediators, claimants and defendants, counsels as well as recipients of a summons, and third parties. The latter may include persons who have no formal status in the judicial proceedings but are called upon to assist in mediation. Unequivocal allocation is ensured by assigning case reference numbers to the assessment sheets and questionnaires. The first step involves the recording of case-related information about the mediation procedure, notably particulars concerning the parties' initial positions. This is followed by all participants' comprehensive appraisal of the entire mediation proceedings and their results. In addition, the statutory judges and the mediators submit their expert assessments of the respective subject matter. The questionnaires were modelled on the well- proven constructs used in another model proposes mediation to the parties concerned. project entitled "Schlichten statt Richten" This can occur at any stage in the proceed- [Mediating Instead of Judging] conducted in ings. Mediation may, however, also be sug- Lower Saxony. The present survey neverthe- gested by one of the parties or their counsel. less had to be adapted to the special features The procedure is initiated after all those in- of social jurisdiction. So far, 139 question- volved have given their consent. During me- naires have been distributed, of which 130 diation, court proceedings are suspended. have, at this point in time, been filled out and returned by the respondents. This corre- Successful mediation is ended by a so-called sponds to a response rate of 93 percent, with concluding agreement made in writing. Sub- the questionnaires of claimants and defend- sequently, the judicial action is likewise end- ants comprising the majority. ed either through unanimous declarations of Nikola Friedrich termination, settlement in court, withdrawal of the action, or recognition. This may occur by forwarding the concluding agreement reached in mediation to the original court. In cases where mediation fails, the action is resumed. So far, 55 cases of mediation have come to a close by concluding agreement. This corresponds to a success rate of about 80 percent.

Academic Accompaniment

The above model project has been accompanied by scholars of the Institute since 1 January 2007. The aim of such accompanying research is to analyse and assess the mediation procedures conducted under the Structural Reforms to Social Beneﬁ t model project, and to develop and refine the Systems criteria governing their suitability. To that end, standardised written surveys of all par- 2.7. Restructuring Retirement Provision ticipants in the procedure are conducted, and through Basic Pensions? mediation as well as court files are evaluated. Seven different questionnaires are presented The sustainability of old-age pensions to the respective participants at the end of granted under the German statutory insur- proceedings, namely to the statutory judges, ance scheme is a constant issue of political

42 II. RESEARCH

debate. The 2001 pension reform has done little to alter that, since it left the basic structure of pension insurance unaffected, namely the strict reference between earnings and later benefits. Based on this computation formula, persons with low earnings during working life or with interruptions in their social biographies (e.g. parenting, unemployment) receive correspondingly lower retirement benefits. These low benefits often lie only slightly above the social assistance level, or sometimes even fall well below it. This leads to poverty in old age, a problem which in the past has above all impacted women. The legal recognition of parenting and caregiving periods as well as the introduction of pension rights splitting have not entirely eliminated poverty among elderly women, but have mitigated the situation somewhat. Moreover, fewer interrup- granted under social assistance, about half tions in the careers of women living in the to two-thirds of a working life is needed to five new German states, dating from their acquire a pension above social assistance work biographies in former East Germany, level. This, however, presupposes that the have at any rate improved the statistical lev- insured person continuously earned nearly el of female old-age poverty in Germany. €2,500 per month – a salary that many employees do not nearly reach, not even in full Nevertheless, the subject of old-age poverty employment. has not become obsolete. Quite on the contrary, it will grow into an even more crucial In light of these circumstances, the two issue in the years ahead. The reasons for Catholic associations devoted to worker this are complex in nature. The aforemen- and family issues in Germany, namely the tioned statistical effect of work biographies Katholische Arbeitnehmer-Bewegung Deutsch- under the former East German regime will lands (KAB) and the Familienbund der Katho- diminish as those concerned grow older. liken, have developed a joint pension model. Several statutory amendments targeted at It proposes the conversion of statutory pen- cost saving (e.g. lowering of survivors’ pension insurance into a two-tier system of state sions or recognition of survivors’ earnings, retirement provision, consisting of practically curtailment of legally recognised training universal entitlement to a "basic pension" periods, or decline in contributions for un- and earnings-related "mandatory employee employment periods) will entail lower pen- insurance". The third stage of the pension sion benefits. At the same time, long-term model envisages the extension of supplemen- unemployment and precarious employment tary occupational pension plans and private relationships will negatively impact future retirement savings. beneficiary cohorts. With the support of the Ministry of Labour, Social Affairs and Health of the federal state Benefits only marginally above the social of North Rhine-Westphalia, the above as- assistance level moreover weaken the legiti- sociations launched a model study on the mation of mandatory contributions to statu- implementation of this concept. An addi- tory pension insurance. Already today, an tional partner, the "Social Policy and Labour average earner must contribute for 13 years Markets" research unit of the Ifo Institute in order to become eligible for a payment for Economic Research at the University of of €347, which is equivalent to the current Munich, was entrusted with projecting both social assistance rate. In the new German the long-term financial development of state states, s/he must do so for even 15 years old-age pensions following the reform's im- owing to the lower pension value. Taking plementation and the reform's distributive account of housing support, which is also effects.

43 REPORT 2006-2007

This Institute was assigned the task of ap- temporary reforms thereof. The fact that praising the reform model from its legal angle, these reforms have occurred not in isola- notably under aspects of constitutional law. A tion but against the backdrop of German particular legal difficulty was that the authors legal developments, and that German law of the model deliberately seek to regulate has been observed from the vantage point financing via contributions, and not tax rev- of a foreign legal scholar, makes this study enue, for reasons of legal certainty. Also, the highly remarkable. A completely new vista model system's inclusion of civil servants and thus opens up before German readers who occupations regulated by professional cham- are familiar with "their" law. They discover bers posed considerable legal problems. In what aspects of their law are considered the final analysis, however, the legal appraisal important from the angle of a foreign legal came to the conclusion, based on prevail- system and a foreign legal culture, and how ing constitutional case law, that the model is some of their own country's reform measures unlikely to come up against absolutely insur- are appraised from outside. Hence, readers mountable constitutional hurdles. Whether are given access to a point of view that ena- it can be translated into action on a politi- bles them both to see how their own law is cal level was not a point of assessment. The analysed by others and to draw conclusions initiators subsequently put both the model for juridical comparisons. and the study up for discussion. In October 2007, a meeting with statutory health insur- Both the German and the Japanese social in- ance representatives was held in Düsseldorf. surance regimes have come under pressure As may be expected, these experts took a re- to reform in recent years. The external rea- served stance towards the model and tended sons are comparable: demographic develop- to favour solutions within the statutory regime ments and international competition impact – without, however, being able to explain how both economic systems. Even so, it seems to eliminate the basic structural problem of that responses in Japan differ from those in later pension benefits being dependent on Germany. This gives rise to a number of ques- prior earnings. An additional conference with tions: What differences exist? What explains social welfare associations (e.g. Caritas), to them? And what role will such explanations which the Institute has likewise been invited, play in the future? The above study sheds is scheduled for 13 June 2008 in Münster. light on these issues. It also casts doubt on Hans-Joachim Reinhard the widespread view that comparable problems will entail comparable solutions despite all national and cultural distinctions. In 2.8. Social Security Reforms in Japan and other words, the study's findings contradict Germany in the Face of their Ageing expectations of a common tendency towards Societies modernisation marked by converging developments. In 2007, Katsuaki Matsumoto presented the findings of his 18-month study conducted at To begin with, it is correct that the origins this Institute on the subject of social security of Japan's health insurance as well as its reforms in Japan and Germany in the face of long-term care insurance, which was intro- their ageing societies. His research work was duced much later, were strongly inspired by sponsored by the Volkswagen Foundation, German examples. The organisation of the the Japanese Ministry of Health, Labour respective social protection branches never- and Social Affairs, and the MPI for Foreign theless differs widely in the two countries. and International Social Law. The findings Thus, long-term care insurance in Japan have been published under the German title covers only persons who are older than 40 "Reformen der sozialen Sicherungssysteme and who are moreover classified into two in Japan und Deutschland angesichts der insurance groups. The scheme also awards alternden Gesellschaft" (Studien aus dem medical benefits and institutional care ben- Max-Planck-Institut für ausländisches und efits without setting ceilings. On the whole, internationales Sozialrecht, vol. 39). Japanese long-term care insurance is structured along more generous lines, but is also The study delivers insights into Japanese financed from the public budget. In contrast social insurance law and, in particular, con- to Germany, no specific infrastructure was

44 II. RESEARCH

rently about 50 percent) is ex- pended on the care of persons over the age of 75.

All these issues affect fundamental aspects of social insurance organisation. They reflect, and this is the conclusion Katsuaki Matsumoto drew from his investigations, the intense hopes Japan is now placing in the "neutrality and expertise of the Ministry" and, above all, in the important role of equal treatment for social security entitlement. It will be interesting to see how these intrinsic features affect the impending reform of Japanese long-term care insurance. And one may be curious whether the trend observed in Europe towards defined contribution plans will also impact Japanese pension insurance, which provides an income-related benefit along- created upon introducing this branch of inside the fixed national pension. surance – an aspect which still plays an important role in present-day practice. A positive summary at the current stage of development must read as follows: We have Japanese health insurance likewise differs much to learn from one another on numer- significantly from its German counterpart. It ous individual issues. Quite evidently, how- covers all inhabitants, notably also self-em- ever, our two countries are guided by dif- ployed persons and higher-income earners. fering general principles, which have been Competition as a possible instrument (or ap- institutionally reinforced over time. Though proach) to enhance efficiency is alien to its similar reform measures might be adopted in conception, both on the side of insurers and Germany and Japan in future, fundamental that of providers. Instead, the system is exten- differences will nevertheless persist in the sively regulated by the government. Although longer range. Consequently, a functional the benefits catalogue remains comprehen- investigation that blanks out normative fun- sive, more recent reforms have introduced daments will fail to do adequate justice to a an almost universal deductible rate of 30 per- comparative social law approach. To confirm cent. From the viewpoint of a country such this fact has been a big merit of Katsuaki as Germany, in which a mere practice fee of Matsumoto's study. €10 triggers a collective uproar and calls for Ulrich Becker the resignation of those responsible, this is doubtless a remarkable personal contribution demanded of the insured. A growing problem 2.9. Perspectives of Accident Insurance in in Japan is perceived in rising benefit expen- Japan and Germany ditures on behalf of older insured persons – a problem which, owing to the special features The longstanding academic exchange be- of the Japanese system, goes hand in hand tween this Institute and Kyoto University with the question of who should defray these was continued and intensified in a confer- costs in future. Worth noting here is that a ence held on 1 October 2007 in Munich major proportion of budgetary funds (cur- on the perspectives of accident insurance

45 REPORT 2006-2007

in Japan and Germany, including a look at sume the diverse kinds of sudden, work-relat- Switzerland. The event was organised in col- ed death. Another focus was on the problems laboration with Munich Re and the associa- in connection with health damages caused tion of German Statutory Accident Insurance by asbestos (Nishimura). A largely govern- (DGUV), and tied in with the symposium ment-funded law adopted in 2006 for the held in Kyoto in 2006 on the subject of oc- regulation of asbestos issues was explained cupational accident insurance, notably its in- in this context. The complexity of asbestos- surance benefits and scheme organisation. related damages to health was pointed out from the reinsurer's angle, stressing the – in- A German-Japanese comparison of accident ternationally speaking – exceptional status of insurance suggested itself in light of current the employer's liability privilege under Ger- reform discussions in Germany. On the one man law (Lahnstein). hand, Japan has a comparable reform back- With a view to the reform debate on restrict- ground and its demographic development is ing the scope of coverage in Germany, it was likewise similar to that of Germany. On the emphasised that the replacement of the em- other hand, Japan has already gained experi- ployer's civil liability through statutory acci- ence with regulations resembling those cur- dent insurance is the underlying principle of rently debated in Germany, such as a mixed the German system. Hence, it is considered form of financing based on pay-as-you-go and possible that the extension of non-material funding principles, or cost-sharing on the damages under civil liability law could af- part of the insured in the case of accidents to fect accident insurance law. The coverage and from work. Accordingly, the conference of commuting accidents under employer- theme addressed aspects of insurance cov- funded accident insurance was rejected in erage from German and Japanese perspec- favour of employees' financial involvement tives, as well as the question of financing. It (Fuchs). also provided a forum for German and Swiss views on pension computation issues. Financing

Scope of Insurance Coverage The subject matter of financing centred on the relationship between pay-as-you-go In addressing the scope of accident insur- and funding elements. The Japanese side ance coverage, the Japanese side above all presented the concept of applying the pure expounded on the "Karôshi" cases that sub- pay-as-you-go method to short-term benefits

46 II. RESEARCH

and a special variant thereof to long-term ing procedure (Umlagedeckungsverfahren), benefits, whereby the discounted total ex- whereby the prospective burden at the mo- penditure calculated for newly arising ben- ment of benefit computation is allocated to efit obligations is apportioned to the contri- the budget in discounted form and financed bution payments of the three following years by pay-as-you-go appropriations (Gächter). (Muranaka). A big problem in Japan is that A crucial feature of the Swiss model is seen a large share (approx. 14 percent) of com- in the complementary pension system under panies liable to insurance are not registered which accident insurance pensions of up to and, hence, pay no contributions. 90 percent of insured earnings are awarded The German side saw the reform debate on alongside basic invalidity pensions. Frictions the introduction of funding elements as the arise where persons were partially employed central issue (Becker). The formation of capi- and partially self-employed, or not employed tal coverage is endorsed, on the one hand, for at all. reasons of demographic development and, The final paper dealt with the reform debate on the other, because insurance contribu- on the calculation of pensions in Germany tions levied on declining branches of indus- (Kranig). A main issue was the working draft try are steadily increasing, given that former of the Federal Government on an accident burdens must be borne by an ever smaller insurance reform aimed above all at amend- community of enterprises. The introduction ing the legal provisions regulating occupa- of funding elements under the aspect of dis- tional diseases and pensions. Key points were tributive justice is in principle the correct ap- abstract and/or concrete damage assessment proach because the distribution of burdens and reductions in earning capacity, as well is thus linked directly to causation. However, as the coordination of the two bodies of law also the pay-as-you-go method does not per governing accident insurance pensions on se conflict with intergenerational justice. the one hand and statutory insurance pen- Moreover, adjustment mechanisms could be sions on the other. provided in a system-compatible manner to Christina Walser / Martin Landauer avoid overburdening individual branches of industry. Yet when seeking a conversion of systems, dual burdens on individual genera- 2.10. German-Japanese Joint Research tions would have to be avoided. on Social Security (GJJRSS) This thematic block was concluded with remarks by a reinsurer on the pros and cons of Project Structure the different financing forms (Upegui). The GJJRSS project was launched in the last Computation of Pensions reporting period and then brought to a successful conclusion in 2007. It was managed Pension payments constitute a large part of by the Institute (Becker) and Chuo Universi- the financial burden of statutory accident ty (Kaizuka). During the 2005-07 timeframe, insurance, which is why their re-assess- project participants investigated the Japa- ment was chosen as the guiding theme for nese and German health, pension and long- the last group of subjects. A comparison term care insurance schemes in an interdis- with the Swiss accident insurance scheme ciplinary and comparative approach. Besides suggests itself in this context because of its rendering an overview of existing regulations concrete computation of pension amounts and problem areas, they elaborated feasible and the proportional reduction of benefits, options for dealing with the challenges that as opposed to the application of reduced face the present social insurance systems in earning capacity as a measure of pension en- both countries. titlement. That is why a depiction of Japan's system was abandoned at this point and re- Following the introductory workshop entitled placed by that of Switzerland for the country "Social Security in Germany and Japan", held comparison. from 4 to 6 September 2005 in the Abbey of In Switzerland, a distinction is made between Frauenwörth (Frauenchiemsee), the further short-term benefits subject to a prospective details of cooperation were agreed upon. pay-as-you-go procedure and pension ben- The research activities thus targeted were efits subject to a mixed pay-as-you-go fund- conducted in individual studies by the three

47 REPORT 2006-2007

working groups on health insurance, pension mental statistical data. This was followed insurance and long-term care insurance. by a detailed account of the distribution of financial burdens, differences between statu- Groundwork tory and private insurance, the major features of current health reforms, and the impact of The "pension insurance" group dealt with the ageing society on the health care system. The topics of poverty in old age, mixed incomes, paper "Health Insurance in Germany: Bene- changes in working biographies, as well as fits and Reimbursement" (Busse) highlighted pensions in relation to family issues. These individual statutory health insurance ben- four sub-areas of pension insurance law all efits, cost reimbursement, and the work of centred on the aspect of sustainability, which the Joint Federal Committee. The report on nevertheless also plays a role in health and "Macro Evaluation of Health Care Systems" long-term care insurance. The "health insur- (Fukawa) outlined changes to the Japanese ance" group addressed the topics of solidar- health care system expected for 2008 in re- ity and division, regulation and benefit de- sponse to Japan's similar problems of ageing livery, as well as specific health care issues society. Conversely, the report entitled "Issues in an ageing society. The "long-term care in Health Care Service Provision" (Matsuda) insurance" group focused on quality assur- placed individual benefits and their delivery ance criteria, diverse caregiving models, the in the foreground, alongside the very central job market for care staff, and the funding of effects of an ageing society on the health long-term care. care system. The legal foundations for the reimbursement of physicians and regulatory Workshop and Symposium in Japan measures in the Japanese health system were the key topics of the report entitled "State The findings of the three aforementioned Regulation and the Medical Service Supply working groups were presented and dis- System" (Tsuchida). The "Comparative Study cussed on the occasion of the workshop "So- on LTC – Germany" (Rothgang/Igl) illustrat- cial Security in Germany and Japan", held in ed the basic features of German long-term Hakone/Japan early in October 2006. The care insurance and then gave an account report entitled "German Health Insurance of current challenges facing this insurance – Solidarity, Financing and Personal Cover- scheme, centring on market regulation, fund- age" (Becker) started with a brief depiction ing issues and care benefits. The study en- of health insurance structures and funda- titled "The Performance of Long-Term Care

48 II. RESEARCH

Insurance and the Demand for Care Labour" tled "Health Insurance in Germany: Chal- (Komamura) presented the major innovations lenges and Current Developments" (Busse), introduced by the reform of Japanese long- "Financing, Providing and Regulating Long- term care insurance in 2005; it took a look at term Care in Germany – What Lesson Can the expenditure side and at the demands on We Learn from the German Experience?" nursing staff as well as their job prospects on (Rothgang), und "A New Paradigm Shift in the labour market. "Long-term Care Insur- German Pension Policy and the Impacts" ance – Services and Provisions" was the title (Schmähl) portrayed German lines of expe- of a contribution on individual long-term care models and benefits (Hashimoto). The report "Normative Is- sues Concerning Statutory Pension Insurance in Ger- many" (von Maydell) introduced the basic features of German pension insurance and then expanded on the role of the family in old-age protection, the effects of divorce on pensions, as well as pension rights splitting. Fol- lowing this depiction of legal questions and problems, the next expertise dealt with current economic aspects of German rience with health, long-term care and pen- pension insurance in the paper entitled "Sus- sion insurance. Afterwards, representatives tainable Pension Systems in Times of Struc- from the German as well as the Japanese side tural Changes in Demography, Economy and (Becker, Igl, von Maydell, Kaizuka, Tsuchida, Society: The Case of Germany" (Schmähl). Fukawa) discussed the present systems of Its prime emphasis was on the distribution both countries and attempted to draw fea- of financial burdens and risks, pointing out sible or necessary conclusions for the future prospective further developments and reform configuration of social insurance systems in opportunities. The Japanese reports on "Nor- Germany and Japan. mative Issues of the Public Pension in Japan" (Tanaka), "Sustainable Framework of the The findings of both the workshop in Ha- Pension System" (Fukawa) and "The 2004 kone and the symposium in Tokyo showed Pension Reform and the Impact of Rapid Ag- that the ageing societies of both states and ing in Japan" (Komamura) focused on demo- their social systems are faced with very simi- graphic challenges to the pension insurance lar challenges, which have only partially been system, and also discussed the 2004 reform met by the respective reforms undertaken to as well as the various options of private retire- date. The individual studies were published ment provision in Japan. in English in spring 2007 in the Japanese Journal of Social Security Policy (JSSP). The As a follow-up to the above workshop, the German reports were moreover made avail- Symposium "Health Care, Long-Term Care able to interested readers in the Institute's and Pensions in Germany and Japan: New Working Paper No 2, issued in August 2007. Forms of Solidarity and Competition" sought The Japanese team members will publish to present the project's results to other their research results in a volume that is to scholars, practitioners and the broad public. appear in the early part of 2008. The introductory lectures on "Social Welfare Matthias Knecht Systems – Germany and Japan" (Kaizuka) and "Social Security in Germany – Status Quo and Recent Developments" (Becker) served to familiarise the audience with the overall theme. The subsequent papers enti-

49 REPORT 2006-2007

2.11. The Law on Behalf of Persons with Grundlegung und Erklärungshypothesen di- Disabilities in Europe and Asia vergenter Politiken sowie Rechtsetzung für Menschen mit Behinderung in Europa und Since the 1990s, the Institute has increasing- Asien unter den Bedingungen des demogra- ly been asked by visitors – above all by poli- phischen Wandels"). This event was a fur- ticians and scholars – from Asian countries ther step in preparing a final large interna- (P. R. China, Taiwan, Japan and Korea) about tional conference in Asia for the conclusion "European solutions" for the integration of of the project in 2009. The workshop thus persons with disabilities. This prompted the sought to draft and discuss a comparative Institute to undertake a research endeavour framework based on the two previous re- into the "laws concerning persons with dis- search conferences in Speyer and Berlin. In abilities in Europe and Asia". contrast to the latter, however, an important The documentation of a research conference interdisciplinary extension emphasised the held by the Institute and the German Uni- ethnological and cultural-science dimensions versity of Administrative Sciences Speyer of both disability policy and law. To that end, resulted in an initial German publication on the circle of project initiators and organisers the participation of persons with disabilities (von Maydell, Pitschas, Schulte) was enlarged in civil society in Asia and Europe: "Teilhabe through the inclusion of a Japanologist and behinderter Menschen an der Bürgergesell- cultural scientist (Pörtner). The choice of schaft in Asien und Europa – Eingliederung the final conference venue – Tokyo – was im Sozial- und Rechtsvergleich –" (Speyer, likewise a deliberate one, the aim being to 2002). The conference volume "Behinderung give as many Asian country representatives in Europa und Asien im Politik- und Rechts- as possible the opportunity to attend. The vergleich. Mit einem Beitrag zu den USA" workshop, sponsored by the Robert Bosch (Baden-Baden, 2003) was an extrapolation Foundation in Munich, also took account of that project on an international level. It of this thematic expansion in its selection of is based on a comparative approach to policy the subject matter. and law, and contains a contribution on the United States. The "intermediate findings" of the research project following the Munich workshop and From 20 to 24 October 2007, another work- prior to the final conference in 2008 might be shop was held on the subject of "cultural characterised, on the one hand, by "manifold foundations and hypotheses for diverging differentiation" versus "fragmentation and policies and legislation on behalf of persons lack of transparency". On the other hand, the with disabilities in Europe and Asia under values and basic principles of disability pol- conditions of demographic change" (Ger- icy seem to be converging, as evidenced by man working title: "Kulturwissenschaftliche the UN Convention on the Rights of Persons

50 II. RESEARCH

with Disabilities of 2006, which was framed and practitioners. Collaborative activities and backed not only by European countries between Turkish organisations and this In- but also by many Asian states. The European stitute have thus brought forth a number of Union has moreover been witnessing a con- publications in both the Turkish and Ger- vergent trend set in motion by common or at man languages. least similar demographic and economic parameters. This trend is simultaneously being Turkey's social security system is currently supported by policies and – to an increasing undergoing an intense rebuilding phase. Re- degree – also by law. form endeavours were already initiated in the In this way, EU states are not only character- 1990s and have led, inter alia, to the adop- ised by a juxtaposition of policies and laws tion of the new Social Insurance and Gener- governing social benefits, rehabilitation and al Health Insurance Act, which entered into disability, on the one hand, and disability- force in May 2006. The wish to gain further specific prohibitions of discrimination, on information and to discuss these matters the other. Rather, there is a growing tendency prompted the Turkish side to invite mem- to integrate these two broad lines of action in bers of the Institute (Becker, Sichert, Ross, the direction of a consistent European dis- Reinhard, Kaufmann) to Ankara to report on ability policy and a veritable European dis- developments in Germany, notably the most ability law. recent organisational and substantive-law reforms to unemployment, health and pension Against this background, European disability insurance as well as social assistance. To policy and law would, at first glance, seem that end, the Turkish and German sections capable of serving as a model and lead for of the International Society for Labour Law Asia. Even if this might ultimately hold true and Social Security together with the Max to a certain extent, according to some Asian Planck Institute for Foreign and Internation- experts, it should be conceded that the nor- al Social Law organised a conference, which mative provisions of such a law have been took place in Ankara from 7 to 8 Decem- reflected only insufficiently in the reality of ber 2006, on the subject of social security disability-related affairs, also in Germany. restructuring in Germany and Turkey ("Die This would seem reason enough to tackle a Neustrukturierung der sozialen Sicherheit in comparative socio-cultural and legal exami- Deutschland und in der Türkei"). nation on the implementation and application of the pertinent social benefit regimes as The programme started off with an outline well as on specific European anti-discrimi- of reasons for and objectives of social law nation legislation in favour of persons with reforms in Germany and Turkey (Becker, disabilities. This in turn could lend legal Güzel). This was followed by respective por- contours to the central concept of "partici- trayals of structural changes in the organisa- pation", incorporating interdisciplinary and tion of social insurance, basic protection and comparative aspects as well as theory and social assistance (Ross, Sözer), along with practice. reports on basic features of the health insur- Bernd Schulte ance reform (Sichert, Okur) in both countries. An additional theme was the restructuring of pension insurance law from the 2.12. Reform of Social Benefit Systems in vantage point of each country (Kaufmann, Germany and Turkey Canıklıog˘lu). The concluding papers were devoted to substantive-law changes in basic As a potential candidate for accession to protection and social assistance (Reinhard, the European Union, Turkey is called upon Akın). In the subsequent discussions, the to modernise its legal order and adapt it to provisions of the new Turkish Social Insur- the so-called acquis communautaire. Ac- ance and General Health Insurance Act were cordingly, Turkey has undertaken consider- regarded in relation to the relevant German able efforts in the recent past to do justice reforms and subjected to a critical scrutiny to the requirements of Community law. The – especially as the Act had been submitted Institute already set out years ago to accom- to the Turkish Constitutional Court for an pany social security developments in Turkey abstract judicial review. In its decision of 16 by establishing contacts to Turkish scholars December 2006, the Court declared a large

51 REPORT 2006-2007

part of the Act's reviewed provisions uncon- democratic processes. All that should not stitutional. Consequently, the Turkish legis- be taken for granted. Since the 1990s, per- lature postponed the entry into force of this sisting economic stagnation and population law three times – the last deferral was until 1 ageing have led the social security systems June 2008 – in order to make the necessary of most European countries into more or less amendments as specified by the Constitu- deep states of crisis. And, everywhere, this tional Court. An analysis of this judgment by has in turn led to the adoption of more or the Institute's new research staff member for less diversified reform legislation in response Turkey (Körtek) has recently been published to massive saving constraints. In most cases, (ZIAS 4/2007). however, such lawmaking efforts were lim- Hans-Joachim Reinhard ited to mere corrections in detail. Only Swe- den has succeeded in politically enforcing a sweeping reform of its entire system. 2.13. The Swedish Welfare State: Its Modernisation, Stabilisation and The project "Analysis of the Swedish Wel- Europeanisation fare State", envisaged as a monograph comprising manifold preliminary studies, has Under the current "labour market activation" acquired a new dimension in the wake of project (see II.2.5. above), the Institute's Sweden's 2006 parliamentary elections. In country section for the Scandinavian states September 2006, the Social Democrats, af- participated in the international and inter- ter a 12-year rule, lost power to the centre- disciplinary collaboration with Danish and right Allians för Sverige. These election re- Swedish social scientists in preparing the sults have been attested historic significance labour- and social-law contributions to the for diverse reasons. Worth remembering respective country reports. The reports have is that the Social Democrats had held the thus extended the longstanding descriptive reins of government for 65 of the previous and comparative legal investigations on dif- 74 years. During that span, the conservative ferent aspects of the Danish and, in particu- camp won the elections twice, but in both lar, the Swedish welfare state by including instances these changes of government took the fields of labour law, dismissal protection place in the face of deep economic crises. law, unemployment insurance, and employ- In contrast to 1976 and 1991, Sweden was ment placement. Previous research findings in the midst of an economic boom phase in are available, inter alia, on the following sub- 2006: with over four percent GDP growth, jects: the national health systems of the Nor- the economy had just peaked. Although a dic countries and the attendant models of pa- slight slowdown to about three percent was tient insurance established there; retirement predicted for the next two years, the state provision in Sweden and the current pension budget was healthy and the economy was reform; the role of supplementary company successful on the global market – not ex- pension schemes within the Swedish old-age actly a scenario that would provoke voters to protection system; and the legal regulation of change camps. Even so, the Social Demo- part-time work in this country. crats gained only 35.0 percent of the votes and thus suffered their worst poll defeat For some time now, there have been plans to since the introduction of universal suffrage sum up individual studies in a comprehen- in 1911. Although the Moderates, who had sive jurisprudential analysis of the Swedish attained 26.2 percent, were able to record welfare state. Such a venture merits particu- the greatest success in their party's history, lar interest, given that Sweden is exemplary the Social Democrats nevertheless remained in several ways. Thus, Sweden has shown by far the strongest parliamentary party. Yet that even highly traditional welfare state in- in forming a coalition with the other centre- stitutions require extensive reforms in the right parties, the Moderates gained nearly face of present-day challenges; that specific, two percent on the left-wing parties and the system-inherent reforms alone usually fail Miljöparti (Greens) and could thus form the to provide sufficiently effective solutions to government. complex issues; and that necessary reforms, Against this background, it is usually stressed even if they involve radical modernisation, that the actual novelty of the 2006 polls and can be pushed through politically by way of the potentially decisive factor was the un-

52 II. RESEARCH

precedented unity of the four centre-right critical analysis of the actual state of affairs. parties. Efficiency and cost-saving on the part of the The change of government is not expected judiciary often constitute criteria for review- to impact most policy areas, notably social ing whether due process of law has been policy, simply because Fredrik Reinfeldt was realised for everyone. A number of changes successful in portraying his "new" Moderate already effected show that it can be expedi- Party as the true "workers' party" during the ent not to concede a third stage of appeal in election campaign, thereby proclaiming the every judicial action, or to renounce prelimi- fight against (hidden) unemployment as the nary proceedings in specific cases, or to cre- main goal of social policy. Hence, it is not a ate appellate jurisdictions across Germany's paradox if the electoral defeat of the Social constituent states. Democrats has been interpreted as a "tri- umph for social democracy", given that the Basically, however, scholars tend to focus Moderates had adopted their policies. The on the more important aspect of judicial or- conservative alliance had no longer been ganisation. The core issue is whether there able to oppose a social policy whose benefits should or must at all be differences in pro- were claimed by a very large part of its own cedure, organisation and personnel selection voters. where courts are called upon to deal with specific facts. Research on this theme thus Accordingly, despite the change of govern- addresses the functionality of specific juris- ment, there is little need, say, to doubt the dictions and the closely related possibilities institutional stability of the Swedish old-age and limits of differentiated jurisprudence. protection reform, which was implemented Accordingly, the Institute's project is devot- at the turn of the millennium by the broad ed to the pros and cons of a unitary judiciary, consensus of all parties. The question, rath- proceeding from functional and due-proc- er, is whether the "cross-party" acceptance ess lines of reasoning, and also asking about of a well-developed welfare state merely re- potential intermediate solutions. To broaden flects a specific Swedish feature, or whether its perspectives, the project takes a compara- it augurs a tendency for other European tive law approach. For in all European states welfare states. This aspect, along with the the judiciary has become more differentiated increasing impact of Community law and – and, in many cases, specialised in the legal above all ECJ case law on Sweden's national protection of social benefits. How and why (social) legislation, is to be incorporated into this is so, is the point of departure for the in- the above-mentioned research project. vestigation. The project does not merely be- Peter A. Köhler gin by addressing the stages of appeal – that is, panels of judges, courts or tribunals, and their legal structures – but also looks into the 2.14. Social Security Jurisdiction in a special features of social administration and Comparison its concomitant procedures.

The future organisation of social security ju- The focus is thus on states with a long tra- risdiction is currently a topic of debate in the dition of specialised courts or the rule of Federal Republic of Germany. This debate law. At the same time, prospective insights is connected with general reflections on a to be gained from so-called transformation reform of state organisation with a view to countries and their judiciaries are included. creating more efficient structures. Whether In terms of content, only particular social legal protection should be afforded through benefits are highlighted because national specialised courts or a unitary judiciary is not legal systems tend to define these benefits a new issue (leitmotif: common rules of pro- and their legal protection differently. A major cedure under public law). Yet with regard to point of interest, moreover, is whether the "expense reduction" and "budget efficiency" legal protection of social benefits is in fact arguments, this discourse has acquired a assigned to special first-instance courts or novel quality, gained new legitimising force, judicial branches and, if not, whether uni- and become a topic of political debate out- tary judicial systems have special chambers side expert circles. Discussion about juris- for social benefit matters. Another subject dictional specialisation per se is nothing but a is whether initial decisions by the social ad-

53 REPORT 2006-2007

ministration may, or perhaps even must, be cal laws and labour law. The increased labour attended by further procedures before call- participation of mothers, who to this day feel ing upon the courts. Finally, an important primarily responsible for child-rearing, has question with a view to functional aspects become a central social issue in all countries is whether specialised or lay judges deliver compared. The legal responses tend to vary, judicial decisions. with individually differing needs often best Friso Ross met by a flexible mix of time-related rights (under labour law, by adapting workplaces and granting special rights to employees Family and Social Protection with caregiving duties), cash benefits (under social law, by cushioning parenting work in 2.15. The Third Generation – Child- the family), and infrastructural measures (in- Related Social Benefits in a Legal cluding public and private offers). Comparison Owing to its comparative law approach, the The Institute's comparative law project on study could not be confined to traditional the "third generation" seeks to portray the "family benefits" or measures for the equali- legal objectives and normative foundations sation of child burdens. On the one hand, of child support and childcare benefits in specific benefits for additional needs, for in- the legal systems of Germany (Hohnerlein), stance on behalf of children with disabilities, France (Kaufmann), Italy (Hohnerlein) and were not considered for feasibility reasons. Sweden (Köhler) within a comprehensive On the other hand, the aforementioned mul- framework of comparative law. The underly- ti-functionality of some family-policy meas- ing intent is to systematise child-related so- ures made it necessary to include schemes cial benefits within their broadest meaning that cover child-related needs in an inciden- – that is, including measures for the support tal way, even if they do not address them and relief of families with children in the explicitly. Moreover, in some comparison form of maintenance, on the one hand, and countries, the new generation's transition to caregiving and education, on the other. The economic independence is increasingly de- aim, moreover, is to appraise and compare on layed beyond their attainment of majority, so the basis of empirical findings the differing that the treatment of these young adults in reasons underlying the legislation on "child terms of maintenance and social benefit law benefits" and how they have evolved in the constitutes an additional problem. above countries. A central issue is whether child-related social benefits are recognised On the Project's Progress in the Period as private or rather as "public" tasks. under Review

The reasons given for child-related social Many of the already submitted, very lengthy benefits and how they are framed constitute country reports had to be updated owing to a highly topical issue in the face of demo- large-scale reforms of family policy in in- graphic developments. But also in countries dividual countries. This was necessary to with relatively high birth rates there have take due account of changes in perspective been numerous reforms introducing new that have often been paradigmatic in na- concepts for the provision, inter alia, of child- ture – for instance, the introduction of the care benefits. This subject matter is closely parenting allowance in Germany in 2007. related to notions of the family and family The framework of family law has likewise models underlying the diverse national fam- undergone changes in some states in the ily policies. process of catching up with modernisation; this in turn required a careful assessment of Child-related family benefits are extremely potential repercussions on social benefits. manifold and can, in functional terms, form The integration of manifold statutory revi- a part of all protection regimes. This very of- sions, sometimes comprising major concep- ten leads to overlapping of child/youth assist- tual amendments, delayed the completion ance law (originally intended as social com- of the country reports within the planned pensation for specific disadvantages) with timeframe. Furthermore, a separate sec- school and education law, as well as with lo- tion on international law was developed in

54 II. RESEARCH

the reporting period owing to the increasing years acquired a higher rank within the legal significance of child-related perspectives in systems of the compared countries, and have various international conventions (Knecht). thus impacted child maintenance and child- The comparative evaluation of the country care benefits. reports bundles the most important results and sums them up in the form of theses. Regulatory Intents and Functions of Child-Related Social Benefits Provisional Results of the Comparative Although the compared countries are tra- Law Analysis ditionally assigned to different types of Eu- ropean family policy, correlative trends for The Fields of Law Governing Child child-related social benefits can be ascer- Maintenance and Child Care: Legisla- tained. Still featuring prominently among tive Choices and Underlying Reasons overarching regulatory intents is support of The fields of law governing child mainte- the parenting function from the child's per- nance and childcare benefits in the com- spective. This applies to support and relief pared countries are highly heterogeneous. granted to parents for child maintenance The allocation of these benefits to differing expenses, as well as to the combination of sub-fields of law can, on the one hand, affect time-based rights and infrastructural meas- legislative competence in federally struc- ures inherent in childcare benefits. Support tured legal systems and, on the other, influ- on behalf of the parenting function involves, ence the interpretation of law in its practical on the one hand, the right to have a family application as well as the specification of ad- and, on the other, all children's right to equal dressees or the financing of measures. The opportunities and self-development. Easing framing of social policy, on its part, cannot the burden of parents' primary maintenance be seen in isolation, but is in numerous ways responsibility through diverse monetary ben- characterised by normative requirements efits remains an important objective in the governing, say, positions under family law, as compared countries; nowhere has it been well as by requirements of constitutional or given up in favour of childcare benefits. international law. Changes in the legal sta- Besides general allowances for child main- tus of children and in the awareness of their tenance, special needs are generally also rec- interests meriting protection have in recent ognised (housing, school expenses).

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A particular concern is the combating of the other, to EU concepts under the Lisbon child poverty. Measures to that end are Strategy which demand a higher level of fe- aimed at providing security to low-income male labour participation. families and families in difficult circumstances (single-parent and/or multi-child There is a distinct trend towards strengthen- families). On the other hand, the prevention ing the role of fathers as caregivers (under or subsequent correction of poverty through the motto of "daddy rocks the cradle"). The measures of labour market integration – no- greater involvement of fathers in caregiving tably that of mothers – is a further important tasks is reflected in family law regulations aspect. The labour participation of mothers on parental custody after divorce. Thus, a is deemed one of the most certain means of joint custody regulation upon failure of the avoiding child poverty, but is only achievable parental relationship has been adopted in all if the necessary infrastructure is provided. countries, the last of which to do so being Italy. The strengthening of the father role is Finally, a purely child-specific regulatory moreover very conspicuous in the develop- goal is the promotion of child development ment of labour law rules on parental leave and the creation of appropriate conditions for childcare purposes. Provisions on leave for children's integration. Here, we witness a periods granted exclusively to mothers are on tendency for states to extend their traditional the decline and are confined to the phase of guardian function, i.e. intervention only if statutory prohibition to employ women dur- child welfare is at risk, to include a more pre- ing maternity protection. In addition, new ventive approach, i.e. avoidance of obstacles rules have been adopted that apply solely to to development through furtherance and fathers' leave of absence in connection with early intervention. This aspect plays a crucial childbirth; other changes to parental leave role in seeking to embed child care in social involve quotas on behalf of fathers. or educational policies and in designing the A novelty is the increasing emphasis placed concomitant measures. Thus, such measures on the rights and the perspective of the child. may be viewed as part of the general pub- This vantage point entails differentiated lic services that ensure equal participatory treatment as regards access to public or pub- rights for all children, or as means-tested licly subsidised childcare offers (Sweden). social benefit schemes with selective access. The advancement of child development is, Developments in Childcare Benefits moreover, closely linked to the aspect of pre- Supportive child care and the advancement of venting the violation of child rights within child development, upbringing and education the framework of child protection. (i.e. childcare services outside the family) are based on two different regulatory objectives. Persistence of Differing Family Policy The one aims to assist parents in their care- Concepts giving duties through infrastructural offers, Despite a certain degree of approximation, notably to promote compatibility with work. differing familial concepts persist in the The other, from the perspective of the child, compared countries until this day. Certain seeks to foster development opportunities in benefits are still often partially bound to the interests of children and, in particular, to matrimony. As a rule, the parent/child legal support educational processes in pre-school relationship no longer determines access to age. The creation or guarantee of a wide offer general monetary benefits (child allowance); of childcare resources is a need stressed in all as regards the actual award of maintenance, the reports. Whether early childhood devel- children are entitled to equal treatment. Ad- opment (pre-school age) is regarded as a task ditional resources, say, for accommodation of the educational or social authorities tends and education in connection with schooling to differ and affects the following: 1) access requirements are usually linked to earnings to day-care facilities, quality assurance, and limits. In most countries, the personal earn- financing modalities (parental costs); 2) tem- ing responsibility of parents has been accen- poral scope of offers and need-based criteria; tuated more strongly, even if they have chil- 3) options regarding preventive measures for dren requiring care. This is attributable, on the early detection of health impairments or the one hand, to efforts at achieving de facto even child abuse (via links to an early warn- equality between men and women and, on ing system for vulnerable children).

56 II. RESEARCH

All things considered, important decisions the BMFSFJ entitled "Self-Responsibility, for setting the future course of reforms with Private and Public Solidarity – A Compara- a view to the interests and rights of children tive View of Gender Role Models in Family are facilitated in all of the countries inves- Law and Social Law in Europe". The confer- tigated. Experience gained from countries ence was held from 4 to 6 October 2007 in with a low level of child poverty shows that the German-Italian Centre in Villa Vigoni in the recognition of child rights when framing Menaggio on Lake Como. The next step was maintenance and childcare benefits consti- to identify the further need for research into tutes a crucial factor, especially in striving to the improvement of equal opportunities for ensure individual development opportunities women and men with a view to independent for the third generation in times of sparse income security. public funds and diminishing margins of distribution. The subject of the conference was not gen- Eva Maria Hohnerlein der equality per se, but rather the gender role models existing in society and law, and their significance for independent as well as de- 2.16. Gender Role Models in Family Law rived income security under family and so- and Social Law in Europe cial law in the countries of Denmark, France, Germany, United Kingdom and Italy. The This Institute and the Department for Gen- aim was to gain insight into the experiences der Equality based in the German Federal of other countries and to "de-ideologise" dis- Ministry of Family Affairs, Senior Citizens, cussion over the male breadwinner model. Women and Youth (BMFSFJ) conducted a number of preliminary talks in summer and On the Concept of Gender Role Models autumn 2006 on a planned research project to accompany measures for the attainment Roles and role models are not legal but socio- of gender equality within society. The aca- logical concepts. They constitute a theoreti- demic study was subsequently given the cal approach used to describe and compre- go-ahead in November of that same year, al- hend links between individuals and society. lotted a timeframe of 18 months (from No- Every individual assumes a number of roles. vember 2006 until April 2008) and funded Behavioural roles result from typified expec- by the BMFSFJ. The initial phase of the tations of society and display various levels of project was devoted to the organisation of commitment: must, should and can expecta- an international, interdisciplinary confer- tions, with law forming a must expectation. ence by the Institute in collaboration with A role occupant who fails to meet expecta-

57 REPORT 2006-2007

tions might be sanctioned for his or her de- the modernisation of gender roles adversely viant behaviour. The shaping of role models affects women and children, or whether it can is a complex socio-cultural and institutional be successful in re-allocating paid employ- process. Role models may ultimately assume ment and unpaid family care work between a quality of cultural implicitness and, hence, men and women under the aspects of equality, no longer be queried. For a long time, this partnership and shared responsibility. was the situation for gender role models. Country Selection and Methodology Recent decades have marked an era of profound social change that was also reflected Italy and Germany are regarded as countries in altered gender role models – though not with a strong breadwinner model, while Den- necessarily in all societal strata and legal mark is considered a main proponent of the fields simultaneously and synchronously. In adult worker model with pronounced individ- keeping with the particular function of law ualistic tendencies and a high proportion of to permit the contra-factual stabilisation of full-time working women. France stands for behavioural expectations, gender role mod- a more family-oriented adult worker model. els implicitly and explicitly embodied in law And the United Kingdom, finally, is a country are often the last to change. Thus law may that used to display distinct male breadwin- find itself in a "cultural lag", meaning social ner characteristics, but now features mani- role models have changed while the institu- fold "breadwinning arrangements". tional framework has not. This bears consid- The project is based on an inter- and intra- erable potential for conflicts, given that law disciplinary concept that places the involved then cannot, or only improperly, offer norms sciences on an equal footing. Country teams that do justice to altered social behavioural were formed, comprising one representative, patterns. In such cases, law forfeits its rel- respectively, of family law, social law and the evance, efficiency and public acceptance. social sciences.

Research Background and Research Central Themes of the Conference Issues Relationship between Self- In the literature, two models are generally Responsibility and Solidarity contrasted with each other. The one is the Equal opportunities between men and women traditional male breadwinner model, which is in terms of financial independence and per- usually encountered in the sole earner mar- sonal autonomy involve three main sources of riage and in the very most cases implies the income: income from paid work, income from female spouse's dependence on maintenance. mutual support in marriage and partnership, The other is the adult worker or dual earner as well as government transfers. The princi- model, which is characterised by the concept ple of self-responsibility serves to justify the of both partners' economic self-responsibility. curtailment of maintenance payments as well as social benefits. Contrary to initial impres- What changes in private solidarity between sions, the principle of self-responsibility need partners as well as in social security sys- not strictly conflict with the principle of soli- tems result from altered gender role models? darity, but forms a part of the – at all times Which of the diverse arrangements tend to – presupposed family and societal relations. foster women's independent income security and which continue to provide incentives for Gender-Neutral Family Law and Social sustaining their dependence on maintenance? Law Regimes To what extent have family law and social law Over the past few decades, family and social – the two core matters at issue – developed law regimes with a gender-specific bias have reform strategies that take account of new largely been superseded in Europe by legisla- gender arrangements and the legitimate in- tion based on the equality and equal treatment terests of women in attaining independent in- of the sexes. Legal norms are now framed in a come security? To what extent do regulations gender-neutral manner. Yet even rules formu- manifest inconsistencies and ambivalences lated along gender-neutral lines can impact that entail role uncertainty for those affected men and women differently. Although the by them? A closely related question is whether state leaves it up to individuals to decide on

58 II. RESEARCH

how they divide up their work, many incen- ities for working-time reductions, flexibility tives continue to be set, for example in Ger- requirements, etc.). many, that foster asymmetrical forms of role allocation in, say, the domain of marginal em- Pluralism of Gender Role Models in the ployment relations by referring to the wom- Long Run? an's social protection through her husband. Although the empirical trend is clearly in the Moreover, one finds implicit role models that direction of modernising gender role models, reinforce traditional gender behaviour, such it may well be that different role models con- as the model of non-employed mothers with tinue to exist side by side in the future – not children under the age of three, or the implic- only during a transitional phase, but in the itly retained social law model of the so-called long run. Family and social law must respond standard employment relationship. appropriately to such pluralism in the sense All countries compared adhere to the princi- of differing gender arrangements. ple of equal treatment in marital law. A targeted, pro-active promotion of equality in the Is the Dual Full-Time Earner Model sense of enabling independent income secu- Only for an Elite? rity is scarcely perceptible, however. Only Putting it bluntly, the adult worker model in after a marriage or partnership has failed its dual full-time earner version is the role does a tendency to assign more personal re- model preferred by highly qualified women, sponsibility to the dependent spouse/partner while the male breadwinner model is fa- become manifest. voured by less qualified women. The latter are confronted with limited opportunities on Diversity of Gender Role Models and the labour market which likewise limit their Gender Arrangements opportunities for achieving sufficient, inde- Europe currently exhibits a wide range of pendent income security through their own gender arrangements coupled with differ- gainful employment. Hence, in discussing ing opportunities for women to achieve in- women's independent income security, one dependent income security. In Germany, for must take account of growing inequalities example, the combination of male full-time within the female population. and female part-time employment is a preferred arrangement – albeit one that is only Diversification of Family Patterns: contingently suitable for attaining independ- Recognition and Valuation of Family ent female income security. Indeed, the Care Work male breadwinner model as an absolutely The recognition and valuation of family care dominating role pattern is now worn out. work correlates with civil status. As was This model nevertheless remains quite alive shown for the United Kingdom, family care- in various country-specific forms, depending giving within the marital context is treated on socio-cultural structures, legal traditions as equivalent with gainful employment and and political objectives – both on a social tied to rights. Under cohabitation law, un- and a legal level. paid caregiving work meets with much less appreciation. When sited within state-de- Re-Allocation of Paid Employment and pendent single parenthood, family caregiv- Unpaid Family Care Work ing becomes at best non-existent or even To date, one can scarcely speak of any part- negative. Glaring differences in valuation ner-based re-allocation of paid employment thus exist here and considerably worsen the and unpaid family care work in Europe. In living conditions of the women and children that respect, the modernisation of gender concerned. In all European states, single fe- roles largely occurs to the detriment of moth- male parents and their children belong to the ers and children. Although studies conduct- group with the highest poverty risk. In times ed in France and Germany record positive of increasingly diversified family patterns, changes in men's attitude towards partner- modern social and family legislation is called like job allocation, a contradiction between upon to provide suitable legal protection for attitude and behaviour remains. The causes new types of family, including the dissolution tend to be complex. And they are no doubt of cohabitation relationships, for example. also grounded in the structure of labour markets (gender-specific wages, limited possibil-

59 REPORT 2006-2007

Reform Strategies for the Improvement in a bi-national, interdisciplinary cooperation of Women's Independent Income project between the Institute and Japanese Security social scientists. A two-day German-Japa- Generally, three reform strategies for im- nese conference on this subject matter was proving the independent income security of held at the University of Tsukuba from 9 to women can be distinguished. The first seeks 10 March 2006; it was followed by a sym- to adapt female employment patterns to posium in Tokyo on 11 March 2006. On 15 those of men. The aim is both partners' full- March 2007, a workshop in Berlin attended time employment, so that income security as by German and Japanese scholars was devot- well as social security is achieved via the la- ed, on the basis of the prior year's results, to bour market. The second strategy is targeted an exchange of views on the intensification at the appreciation and financial recognition and continuation of previous collaboration in of hitherto unpaid caregiving work, and is the field of family policy. found in many family law systems as well as in social protection regimes that, say, count The aim of the conference at Tsukuba Uni- parenting and caregiving periods towards the versity was to create a forum for German and old-age pension. The third strategy links the Japanese scholars to discuss the challenges recognition of family care work to incentives posed by demographic changes to the family targeted at changing men's role in the direc- policies of both countries and, subsequently, tion of more partnership in allocating work. to present the findings to a broad Japanese public in Tokyo. The project was initiated and Women's Independent Income Security organised on the Japanese side by Tsukuba via Gainful Employment University, Graduate School of Humanities Notwithstanding various reform strategies, and Social Sciences (Motozawa). Conceptu- the undisputed result of the conference is al contributions from the German side were that improvements to women's independent rendered by the Institute (von Maydell). In income security can be achieved first and addition, the Institute delegated two (Hohn- foremost via gainful employment. Female erlein, von Maydell) of the altogether four employment has risen in all of the coun- German lecturers. Organisational support tries examined at the conference, albeit on was furnished by the Japanese Government, differing scales and in differing ways. This the Japanese-German Centre in Berlin, the is the result of a complex interplay between German Institute for Japanese Studies and culture (models of gendered division of paid the Friedrich Ebert Foundation. and unpaid work, maternity and childhood) and institutions (welfare state policies, la- The interdisciplinary discussions were con- bour markets and family patterns). In seek- ducted by experts from the fields of history, ing to improve women's independent income demography, economics, sociology and so- security, it is therefore necessary to integrate cial law. Given Japan's interest in practice- them into the labour market on a continuous oriented views, political expertise on both basis or with only brief interruptions. countries was gained by also inviting repre- Eva Maria Hohnerlein / Edda Blenk-Knocke sentatives from the Japanese Cabinet Office (which counsels the Government under the direct authority of the Prime Minister) and 2.17. Family Policy in the Ageing Society the German ministry of family affairs. – A German-Japanese Comparison In its choice of the subject matter, the con- In Germany, demographic development cur- ference trod unknown territory. To launch a rently features prominently among the wide- bi-national colloquium on a theme so emi- ly discussed catastrophe scenarios. In Japan, nently ingrained in national traditions as well too, declining birth rates give rise to mount- as being ideologically charged was a deliber- ing apprehensions and prompt the review of ate venture. A specific problem was that the existing concepts of family policy. Why and Japanese language has no term for "family in what manner should the state intervene? policy". The term used in the past seems to What is the societal significance of the fam- have the negative connotation of "pro-natal- ily? What are the main features of "modern" ist" demographic policy. Nor does a ministry family policy? These questions are addressed of family affairs exist. The Japanese Govern-

60 II. RESEARCH

starting a family and caring for other dependants? The conference was successful in illuminating both the common features inherent in current developments as well as the disparate historical and cultural de- terminants of the family concept. One of the com- monalities found was that both countries have failed to refine their family policy models sufficiently to do justice to actual changes in family patterns. More- over, outdated attitudes to gender role allocation continue to predominate in both countries, in particular as regards the male breadwinner role. Besides the usual aspects of legal and infrastructural parameters that tend to focus on such issues as reconciling family and work, the specific psychological quali- ment has nevertheless stressed the growing ties of family "caring work" in the sense of importance of family policy through its intro- "emotional work" were underscored as a wor- duction of a special government ministry for thy ideal of family caregiving. equality and demographic issues. The thematic focus of the conference was on more The conference at Tsukuba University fa- recent changes in familial forms, including cilitated an open and stimulating exchange the different ways in which family-policy of thought based on fundamental papers, responses have emerged in the respective which were then substantiated from the countries. In the process, the latest concepts respective national vantage points through of family policy planned for the 21st century contributions on selected individual issues, were set against the background of other Eu- such as the societal importance of the family, ropean experiences. the recognition of family work, or family support through social benefits. A final resume The various thematic blocks revolved around presented the following theses for a family the following questions: What underlies the policy designed to meet the needs of the Japanese and German understanding of the 21st century: The main objective of sustain- family as a subject of government policy? able family policy is not primarily to raise the What lessons can be learned from past expe- birth rate, but to create a family-friendly reg- riences of the respective other country? How ulatory framework. This includes a flexible can family policy contribute towards devel- combination of cash benefits, caregiving and oping the individual competences of family educational infrastructures, as well as time- members through an appropriate, nationally related rights for working parents. Family adapted mix between infrastructure, time- policy should centre on the individual rather based rights and monetary family benefits? than the abstract institution of the family, Moreover, how can family policy enable and should strive to do justice to the neces- women and men, mothers and fathers, to sities of dividing family tasks between men participate in both gainful employment and and women based on the principles of equal family care work without having to forego rights and partnership. The conference doc-

61 REPORT 2006-2007

umentation was published in Japan in 2007 sults, the coordinators specified the following (Motozawa / von Maydell, Familienpolitik im topics: 1) Provide an outline of the national Vergleich zwischen Deutschland und Japan, old-age pension system. 2) Relate retirement Shinzansha Co., Tokyo). age limits to the design of the system. 3) De- scribe the political decision-making process. The workshop held in Berlin in March 2007 What lines of argumentation prevail in the sought to identify themes for further research respective parliamentary or internal govern- collaboration, acknowledging that family ment debates on the retirement age issue? policy is typically a cross-sectional subject 4) Detail the (differing) retirement age limits. that overlaps with numerous different policy 5) What is the latest position on this issue? fields. Such a fragmentation of regulations 6) (Optional) What conclusions may be drawn and arrangements affecting family policy of- from a comparative examination of occupa- ten impedes the implementation of new ap- tional pension plans or widows' pensions? proaches because this requires coordination with many other departments. The following Results subjects were discussed at the workshop: family policy and demographic development, It was generally shown that countries which taking a Japanese metropolis as an example place the basic social protection of their in- (Hara); conclusions drawn from the latest habitants in the foreground are less inclined German family report (Meier-Gräwe); the to differentiate in this matter. Even so, ex- interplay between women's policy and fam- ceptions, such as the United Kingdom where ily policy (Hohnerlein); corporate social and special age limits for women had been intro- family policies (Tanaka); as well as general duced in the past, could be found. On the social and family policies (von Maydell). whole, this matter evidently has less to do Eva Maria Hohnerlein with the type of system than with the respective national discourse on old-age security and gender policy. Thus, in countries such as 2.18. Gender-Related Differentiation of Germany or Italy which traditionally accentu- Statutory Retirement Age ate the male breadwinner model there seems to be a distinct readiness to restrict the gain- Low retirement age limits for women in old- ful employment phase of women by means age pension insurance schemes are on the of lower age limits. Countries with distinct decline. This is obviously in line with the family-related retirement policies, such as general trend towards the equal treatment of France, frequently reward family care work men and women in social security matters. by granting special concessions on pension So far, there have only been few investiga- claims, sometimes also on female retirement tions into the reasons behind these specific age, as in the case of the Czech Republic. All differences between female and male age in all, instead of confronting women's double limits. This issue was addressed by mem- burden of employment and family care work bers and guests of the Institute (Walser, with lower retirement age limits, the inter- Darimont, Haerendel, Kaufmann, Schulte, national trend, save for a few deviations, is Hohnerlein, Sichert, Olechna, Vergho, Köhler, moving towards the largely "gender-neutral" Ross, Reinhard, Stefko, Fülöp) in the form award of concessions such as the recognition of individual analyses covering a total of 14 of child-rearing periods for the assessment of countries (Belgium, P. R. China, Germany, pension expectancies. This is also the direc- France, Italy, Netherlands, Poland, Portugal, tion taken by Community law. Sweden, Switzerland, Spain, Czech Repub- Ulrike Haerendel lic, Hungary, United Kingdom). The findings were recorded in country reports, which have been evaluated by the coordinators (Becker, 2.19. Structural Reform of Pension Rights Haerendel, ZIAS 2/2007). Adjustment

Topics The splitting of pension rights upon divorce was introduced some 30 years ago and was at In order to establish a common analytical ho- the time considered an impressive family law rizon and the attendant comparability of re- innovation. It reduced old-age poverty among

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divorced women as they were accorded an rights adjustment as a legal instrument at independent claim to old-age protection. In the interface between family law and social the course of time, however, pension rights law falls through the cracks of existing agree- adjustment procedures have become highly ments. On 11 April 2008, a group of experts complex. One reason is that an increasing will hold a seminar on the structural reform number of occupational pension rights need of pension rights adjustment. The event will to be taken into account. Owing to their dif- also be attended by judges of the German ferent financial structure, these rights must Federal Court of Justice (BGH). The Insti- first be made comparable with claims to tute will likewise be represented there and statutory pension insurance benefits by way will continue to accompany the impending of a relatively complicated actuarial calcula- legislative procedure from a critical jurispru- tion. Another aspect is that more and more dential vantage point. couples seeking divorce have acquired ex- Hans-Joachim Reinhard pectancies abroad which must be included and assessed in the adjustment procedure. The Institute has conducted several investigations on pension rights adjustment in con- 3. Transformation in junction with claims from abroad. Moreover, Threshold Countries the Institute has received several enquiries from courts concerning the structure of non- 3.1. Law and Social Security in national pension expectancies. The pertinent Developing Countries expertises have meanwhile been incorporated into higher court judgments (cf. OLG The Institute's social security research on Karlsruhe, FamRZ 2006, 1848). developing countries is not confined to comparative law studies. Rather, it focuses also For some time now, the structural reform on the dualism between formal and informal of pension rights adjustment has been a social protection, which seems to be typical topic of ongoing discussion. The German of these countries. In this context, "dualism" Federal Ministry of Justice therefore set characterises the phenomenon whereby for- up an expert commission to deal with this mal and informal arrangements exist along- matter. On the basis of the commission's side each other. Such dualism is inconsistent findings, the Ministry has drafted a bill on with the traditional assumption that informal the structural reform of pension rights ad- social protection arrangements will one day justment and put it up for debate. The bill be eradicated and replaced with formal sys- also regulates the consequent treatment of tems. China and South Africa are good ex- non-national expectancies. In this context, amples here, given that only a small propor- the Institute made several improvement tion of their working populations participate suggestions, which have been incorporated in the formal protection regimes. Contrary to into the bill. According to the drafted plans, approaches taken in modernisation theories, foreign expectancies are to be qualified as high levels of economic growth in these coun- not mature for adjustment and therefore re- tries have not caused their informal schemes ferred to so-called contractual pension rights to become obsolete. These schemes remain adjustment. If consistently implemented, relevant for the coverage of individual risks. A these plans will impact international insur- quite different hypothesis, therefore, is that ance careers, which are constantly on the informal social protection arrangements will increase because the European Community always exist, but will be adapted to prevailing approves of and endorses migration. As a re- circumstances and perhaps eventually con- sult, spouses with German expectancies will nect with the formal systems often be left empty-handed. Already now, contractual pension rights adjustment under Theoretical Aspects of Social Security in the law of obligations is very hard, if not im- Developing Countries possible, to enforce, even in Germany. If the liable partner resides abroad, enforcement Our analyses mainly pursue approaches without his/her cooperation is out of the based on social policy, development theory question. Community law scarcely provides and law. All three fields are closely interrelat- a legal basis for enforcement, since pension ed on issues regarding developing countries.

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Thus, social policy cannot be implemented international organisations often fail to take without the political instruments of the leg- sufficient account of cultural conditions in islature and, vice versa, legislative action not developing countries. guided by political motives is unthinkable. Furthermore, development theory and its in- Against this background, the Institute organ- herent approaches determine the influence ised a workshop on 26 and 27 October 2007 exerted by the Western world on policies that was attended by international scholars adopted in developing countries. Such exter- and sought to discuss the following ques- nal pressure to initiate change impacts both tions: What approaches might be taken from social policy and social legislation. For this a global perspective towards transforming so- reason, development policies and their un- cial security in developing countries? What derlying theories must be included in studies political measures are suitable for extending on law and social policy. An overview both social security there? How should political of contemporary research on the social poli- measures and programmes be designed to cies of developing countries and of past and ensure sustainable social security develop- present development policies is indispensa- ment in the developing world? What changes ble to further investigations on social secu- have occurred and what difficulties persist in rity in developing countries. this connection? Can developing countries absorb each other's successful projects and Extending Social Security in Developing political measures? Countries The discussions showed that the problem Developing countries tend to look towards areas highlighted in the diverse academic industrialised nations and international or- disciplines are similar, making it possible to ganisations, such as the World Bank or the find common themes for a more extensive International Labour Organization, in seek- investigation of social security in developing inspiration for reforms to their social ing countries. A main stress here could be security systems. Such a procedure might on the incorporation of informally organised seem prudent given that developed countries social protection networks into state-run so- and international bodies have gained more cial security regimes. The resultant schemes experience in this field. A frequent prob- would then promise to do adequate justice lem, however, is that approaches taken by

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to the cultural particularities of the respec- ment, accident and maternity insurance. So tive country. far, however, this regulatory framework is merely experimental in nature. An alternative to previous international development policy in the social security A commission established in 1993 for the sphere could be seen in so-called social cash drafting of a social insurance law had been transfers that guarantee a subsistence mini- unable to submit a bill owing to insurmount- mum to people in developing countries. The able differences of opinion. In 2003, a new idea of paying social assistance to all needy commission was appointed; it presented a citizens in developing countries is neverthe- draft bill in November 2007. The bill has less opposed by the fact that these countries been approved by the State Council and for- are scarcely in a financial position to arrange warded to the Standing Committee of the for this. A solution would be to finance such National People's Congress for its first read- assistance via development aid funds. Yet, ing. At present, it is hard to say what regula- this is again disputed by the argument that tions the statute will embody in its final ver- development aid fosters poverty as money sion. Regardless of this, a depiction of the transfers lead to dependence. The payment main legal problems is of crucial importance of social assistance in developing countries to the Institute's collaboration and advisory would moreover reduce Western develop- talks with Chinese cooperation partners. ment aid to the provision of purely monetary benefits. It is illusory to think, however, that Chinese legal experts have not yet clari- Western countries would lend such support fied how detailed such a social insurance out of sheer altruism without pursuing their law should be. The main point of debate is own political ambitions, which often stem whether the law should merely offer a gen- from the desire to patronise the receiving eral framework or contain specific social state and, hence, the individuals living there. insurance guidelines. On the one hand, fun- The only way to counteract such a situation damental laws enacted during the ongoing would be to give developing countries a legal process of social security reform are regarded claim to aid payments. So far, however, there sceptically because economic conditions and is no such idea as a right to morally princi- concomitant labour relations are changing pled development aid. too rapidly. On the other hand, a comprehensive social insurance law is considered In the end, the reception of law in develop- conducive to the implementation of a social ing countries remains a relevant option – one security system. with which the Institute has been dealing The current difficulties above all relate to over the past few years. Future research on the following three subject areas: degree of social security in developing countries should coverage, which is deemed too low; differ- thus be devoted to exploring what ideas and ing views on the funding principle versus models could be accepted by whom and by pay-as-you-go financing; and lacking control way of which channels and at what time. mechanisms. Tracing these diffuse processes poses a big challenge to scholars at the present time. Degree of Coverage Barbara Darimont / Yasmin Holm The 2007 bill embraces all five social insurance branches, namely pension, unem- 3.2. Social Law Developments in China ployment, accident, health and maternity insurance. The category of persons covered Since the early 1980s, China's transforma- is defined separately for each branch. In tion from a centrally planned to a market principle, however, all corporate employees economy has necessitated a reform of social – that is, workers in state enterprises and the security, given that all social protection ar- private sector – are included in the social rangements under the planned economy were insurance coverage. Particular rules apply to organised via state enterprises. Provisional the following groups: members of the armed regulations and decrees of the State Council forces, as they are enrolled in a separate have created a social security framework in scheme; civil servants, who come under the the branches of pension, health, unemploy- civil service law and, for example, are enti-

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tled to civil service pensions; and the self- versy over state financing and subsidisation employed, who are free to decide on their of pension insurance. The question of who participation in pension insurance. is to bear the burden of pension insurance The bill states that the government will es- financing has not been decided. tablish a pension insurance scheme on behalf of the rural population and will promote the Control Mechanisms creation of a cooperative health insurance system in the rural areas. The State Council At national level, the general supervision has moreover declared its aim to adopt con- of social insurance institutions is a task of crete measures in the future. This clearly re- the Ministry of Labour and Social Security, flects the political will to set up these social which is supported in specific matters by protection systems. the concomitant authorities at regional level. The 2007 bill calls for supervisory commis- Funding Principle versus Pay-as-you-go sions (jiandu weiyuanhui) entrusted with the Financing function of monitoring the social insurance funds. These commissions will be responsi- The bill does not specify a definite commit- ble for controlling the funds' finances, ad- ment to either the funding principle (for- ministration and investments; they are to be mation of coverage capital), pay-as-you-go instituted at provincial level and will consist financing or partial capital cover in pension of representatives of the government, em- and health insurance. Although the current ployers, trade unions and individuals. The legal framework calls for the establishment commissions will not possess any real power, of partial capital cover, this procedure is though, as their chief function is to submit not effected in reality because the funded proposals for changes or to request other au- portion is used to finance existing pensions thorities to intervene in the event of unlawful guaranteed by the former system. The entire actions. The trade unions, too, will be called abolition of partial capital cover, both in pen- upon to exercise control over employers and sion and in health insurance, is currently up over the enforcement of the social insurance for debate and is closely linked to the contro-

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system. Yet this is a mere appeal whose con- The right of non-citizens to social security tent has not been specified further. cannot be seen in isolation as it is closely interwoven with such other domains as im- The current draft bill contains detailed pro- migration policy, citizenship and human visions on handling violations of employer rights. For instance, residence status often contribution duties. For example, the bodies plays a role here. Informal-sector workers responsible for levying contributions will be are frequently debarred from social security authorised to take measures on the mere sus- schemes because these schemes are tradi- picion of non-payment. Even so, not a single tionally based on an employment relation- provision of the bill addresses litigation in ship. It follows that not only unemployed social insurance matters. Hence, the settle- persons but also these informal workers are ment of legal disputes in this field remains an precluded from insurance coverage. issue that has yet to be conclusively clarified. It is for this reason that the Institute's future It is therefore of utmost interest to look into collaboration with China will concentrate on the causes for the exclusion of migrants and the implementation and enforcement of law. informal workers from the social security Barbara Darimont network. Proceeding from there, strategies for extending the coverage of these groups may then be elaborated. 3.3. Access to Social Security This approach was taken for a comparative Since its foundation in 1919, the Interna- law study on the access of foreign citizens tional Labour Organization (ILO) has been and informal-sector workers to social secu- devoted, inter alia, to enforcing the right rity. It was conducted by the Institute in col- to social security enshrined in a number of laboration with the Centre for International standard-setting conventions. Moreover, the and Comparative Labour and Social Security signatory states of the International Cov- Law (CICLASS) of the University of Johan- enant on Economic, Social and Cultural nesburg. Rights of 1966 have recognised every individual's right to social security. This right in- To reinforce this investigation, the workshop cludes social insurance. These international entitled "Access to Social Security for Non- provisions highlight the great significance Citizens and Informal Sector Workers" was attached to ensuring access to the systems held in Johannesburg on 18 and 19 January that serve to implement this right. Even so, 2006. Current issues relating to the subject less than half of today's world population matter were discussed there by scholars actually has access to systems of social pro- from Germany (Becker, Graser, Schulte) and tection. It follows that, despite positive de- South Africa (Olivier, Dupper, Millard, Mpe- velopments in 20th century social law, this di, Nyenti, Smit) as well as from Zimbabwe field has forfeited none of its importance, (Kaseke). especially as it addresses such issues as the The study will be brought to a conclusion effectiveness of social security systems and with the publication of its findings (Becker/ restrictions of personal insurance coverage. Olivier, Eds., Access to Social Security for Manifold problem areas thus provide am- Non-Citizens and Informal Sector Workers: ple opportunity for academic research, for An International, South African and German example into the protection of non-citizens Perspective; in preparation). or informal-sector workers, to name only two The project did not merely aim to examine groups. Both groups are not as a rule covered the legal situations in the countries under by social security. The topical nature of these comparison, but also sought to depict the problems is reflected, on the one hand, in in- respective institutional frameworks, legal creased migratory movement, above all into instruments and legal techniques, and to as- European states, but also within the African sess these with a view to extending the cover- continent, and, on the other hand, in the rise age of the groups in question. In the process, in non-contractual labour relations mainly in existing gaps and improvement options were Asia and Africa. also identified. Another central objective was to explore all relevant issues from national,

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international, supranational and regional as to members of the police force and the vantage points, and to elaborate solutions. military. Conversely, the scheme on behalf The reports of the scholars thus render an of private employees, JAMSOSTEK, actu- extensive overview of these legal issues in ally insures only a very low percentage of all various systems of law. Therein lies the fun- workers and, in effect, concentrates on cash damental contribution to the better under- benefits under pension insurance, as well as standing of legal and institutional difficulties offering some health and accident insurance arising in the social security coverage of mi- benefits. In these circumstances, charac- grants and informal-sector workers. terised by a low level of benefits and lack- Yasemin Körtek / Ulrich Becker ing controls, needy persons usually bear the costs (of medical treatment) themselves, en- tailing many cases of excessive indebtedness. 3.4. Social Security in Indonesia – On the Apart from that, also private insurance enter- Creation of Legal Foundations for a prises operate on the market. The majority of Universal System service providers are government-employed. Though established across the country, these The Institute has been invited to exercise an providers are predominantly concentrated in advisory function in assisting the task force urban centres; they often tend to operate au- installed by the Indonesian Government in tonomously in accordance with competitive 2006 for the project entitled "Development principles. of a Social (Health) Insurance System in In- donesia". The project has been entrusted to Since 2000 and in light of the amendment the Gesellschaft für Versicherungswissenschaft to the Constitution in 2002, a central policy und -gestaltung e.V. (GVG) and is sponsored of the Indonesian Government has been to by the Gesellschaft für Technische Zusam- eliminate the shortcomings and frictions menarbeit (GTZ). An intensive workshop, inherent in the existing fragments of social with all-day meetings on the subject, was protection, and to erect a highly efficient held from 26 March to 4 April 2006 at the social security system for all citizens. Pre- Institute. External participants included four cedence is thereby given to the framing of representatives of the GVG (comprising the a general health insurance law and the crea- team leader and two Indonesian experts) as tion of mandatory coverage. This develop- well as three representatives of the Indone- ment is driven by Law No 40 adopted in sian Government. The advice rendered on 2004, Article 5(1) of which specifies the the part of the Institute (primarily by Sichert, current overriding mandate: "Social security Schulte; also by Becker, Darimont, Köhler, administrative bodies must be established Reinhard, Walser) commenced with a por- by a law". Potential reform options are nev- trayal of social security foundations and indi- ertheless impeded by two aspects. On the vidual insurance branches, their history and one hand, Article 5(2) and (3) of the Law past experiences as well as current reform provides that the above-outlined insurance options. The concrete subject matter ranged schemes (JAMSOSTEK, TASPEN, ASABRI from the conception of a legal protection sys- and ASKES) be sustained and transformed tem, via problems of levying and calculating – if possible, exclusively and, if necessary, contributions for farmers, to administrative through the creation of additional insurance structures in remote rural areas. programmes (Art. 5(4)). On the other hand, Law No 40 was subjected to a constitutional The work group's consultations conducted review in 2005 at the initiative of local gov- in spring 2006 were based on the following ernments who saw their right to self-admin- background information, task assignment istration infringed. And, in fact, the Consti- and mode of procedure: tutional Court did declare Article 5(2)-(4) Large parts of the Indonesian population unconstitutional, whereas it deemed Arti- must make their own provisions for risks cle 5(1) and the corresponding transitional posed by the vicissitudes of life, notably the provisions constitutional. While the reform risk of illness, which often entails a consid- plans themselves already seem a Herculean erable financial burden. To date, para-state feat, the development of their concrete op- and profit-oriented insurance institutions of- tions now suffers from the specific difficul- fer coverage mainly to public servants as well ties of interpreting this judgment and its

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consequences for the implementation of leg- by statutory provisions as well as ministerial islative requirements. and presidential decrees. All these issues were intensely discussed dur- The (first) reform project embodied in the ing the working weeks in Munich. The find- "Law on establishing Social Security Admin- ings flowed into a comprehensive documen- istrating Bodies (SSABs)", whose main con- tation outlining the general insurance law's tents were roughly outlined by the Institute regulatory contents, its interdependencies in work group, already embraces far-reaching terms of social insurance law and organisa- issues, which in our country are regulated tion, as well as the importance of the regula- in Books I, IV and X of the German Social tory units for further linkages. These analy- Code (SGB) as well as in the Law govern- ses were based on the statutory provisions ing the Social Courts (SGG). This endeav- (notably Law No 40) and on constitutional our is complicated further by references to requirements. Without going into detail and the establishment of individual insurance bearing in mind the running legislative pro- branches, coupled with the attendant reform cedure, three fundamental reform options requirements. And these issues are in turn were available and had to take account of the doubly compounded by problems arising often firmly voiced wishes of the Indonesian from the plurality of insurance institutions. representatives: (1) transformation of exist- First, there is the horizontal plurality of in- ing insurance schemes in favour of entrust- surers covering one and the same risk; their ing exclusive responsibility for each insured competence is limited to specific categories risk to a separate scheme; (2) shared respon- of insured groups. Second, the constitutional sibilities in the sense of proceeding from the requirement of decentralisation calls for a status quo, extending coverage to all citizens multiplicity of insurers; this mainly entails and transforming profit-oriented insurers in- problems of interleaving, homogeneity and to genuine social insurance institutions; (3) subsidiarity. It is within such a multi-lay- reallocation of insurance branches, partially ered structure that the numerous provisions allowing for multiple responsibility in the of Law No 40 on the establishment of ad- sense of one insurer covering several risks, ministrative bodies must be implemented, and the simultaneous creation of a new insti- whereupon the bodies themselves must tution on behalf of informal-sector workers. again be coordinated. The whole procedure resembles a many-tiered network governed The work group's documentation, subsequently presented to and appreciated by the

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Indonesian Government, was an in-depth modern citizenship into a central element treatise on the pros and cons of the proposed of integration within the state community. regulatory options. Understandably, the pro- More recently, the auspices have changed. posals above all referred to the national level, The literature is now full of views on the ero- although the pertinent implications of decen- sion of the (nation) state and parallel trends tralisation were reflected upon, as far as this towards "multiple", "supranational" and even was possible. A further concept of reform- "global" or "cosmopolitan" citizenship. Con- specific legislation based on this preliminary versely, national affiliations have been at- work was recently approved by the President tested a loss of significance. and was being fine-tuned at the time this report was drawn up. There are additional These changes and their potential conse- plans to support the ongoing reform work in quences are the subject of a habilitation situ in Indonesia through advisory activities, treatise accepted as a postdoctoral lecture which are to be allotted a timeframe of about qualification by the Faculty of Law of Lud- two weeks. According to the present state of wig-Maximilians-Universität Munich in the discussions and consultations, these activi- summer semester of 2006. In its core, it is ties are likely to centre on health and unem- a legal thesis; however, in the questions it ployment insurance. poses and the statements it makes, it seeks Markus Sichert to connect to broader socio-scientific issues. The work centres on a jurisprudential examination of subjective legal positions which tie in with the status of legal affiliation. The in- 4. Multi-Focus Research vestigation nevertheless does not stop at nation-state affiliation, but looks beyond that 4.1. Communities without Frontiers? into affiliations with surrounding political On the De-concentration of Legal communities – from the local community Affiliations to Political Communities upwards into the supranational realm. For these communities likewise often concede The integrating force of law has long been exclusive legal positions. a standard theme of the German law of the state and its organs. Particular importance is Yet only a few decades ago, such positions thereby attributed to citizenship status – also, were largely concentrated in the status of and precisely, in the sociological literature. national affiliation. This concentration had In this respect, the mid-twentieth-century emerged from a centuries-long process, essay by T. H. Marshall entitled "Citizenship which has rightly been construed in the liter- and Social Class" is well-nigh classic in the ature on legal history as an individual-rights- way it describes the gradual development of based reflex of modern state development. Today, one can perceive – thus the core thesis of the work – an inverted tendency: the legal content of citizenship status is dwindling without being regrouped within the casing of another affiliation status. The juridical analysis describes the differing dimensions of such de-concentration and identifies the mechanisms that spur it on. The study thus allows for an individual-rights-based perspective on the much described decline of the nation state.

This analytical corpus of the work is embedded in two additional parts that seek to connect its juridical findings to the socio-scientific literature within its broader meaning. The groundwork in the first section leads up to the subject matter by discussing the key terms of the investigation: "community",

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notably "political community", "affiliation", necessarily arise when seeking to postulate "integration" and "community structures". social rights. The pertinent discourses of state theory, sociology and political philosophy are thereby The right to health is entrenched in a series absorbed. of international treaties as well as numerous national constitutions. Alongside regional The third and final section of the work asks conventions in the field of economic, social about the consequences of the ascertained and cultural rights – such as the European de-concentration process. The first chapter Social Charter, the African Charter on Hu- tests the plausibility of the supposition that man and Peoples' Rights, and the Protocol to nation-state affiliation status, along with its the American Convention on Human Rights legal subject matter, could gradually forfeit – a major international standard-setting in- its integrative potential. The second and strument is the International Covenant on concluding chapter then pans from the in- Economic, Social and Cultural Rights. No- tegrative to the legitimatising capacity of law. tably Article 12 of this Covenant lays down In that way, the work distinguishes various the "right of everyone to the enjoyment of forms of rights-conferring legitimation and the highest attainable standard of physical shows that some of these legitimising forms and mental health". A General Comment are undermined by the content-related de- thereby attempts to circumscribe the con- concentration of legal affiliations and by the tent of this article in greater detail. Yet such resultant possibility of community disintegra- a commentary – or any effort, for that mat- tion. This poses the threat of a de-legitima- ter, to give concrete substance to contractual tion of public authority, thus the conclusion. provisions at international level – will always Alexander Graser be infused with the need to effect a compro- mise between representatives of highly differing countries. That alone makes it neces- 4.2. Right to Health sary to focus also on national legal systems in defining a right to health. Point of Departure Procedure Is there such a thing as a right to health? If so, what is its precise intent and purpose, The initially posed questions form the sub- and how can it be enforced? These questions ject matter of a project in collaboration with are of central relevance because although Professor Ingo Sarlet (Pontifícia Universidade health is universally recognised as one of the Católica do Rio Grande de Sul, Porto Alegre, basic prerequisites for a decent life, there are Brazil). As a part of this project, an interna- nevertheless still doubts at both national and tional conference was held in Rio de Janeiro international levels whether a correspond- in November 2007, with the preliminary aim ing subjective right does in fact exist. This of addressing related issues of international is because of the discrepancy found in many law. Nevertheless, national health care sys- countries between the endeavour to provide tems remain in the foreground. They are the best possible medical care and the actual structured on the basis of statute law and its care rendered to a (large) part of the popula- application in practice, without losing sight tion, coupled with the difficulties of financ- of the relevant constitutional requirements ing comprehensive health care on a perma- and the institutions responsible for their im- nent basis. Thus, depending on a state's plementation. level of development and the responsibility it assumes for granting healthcare benefits, An introductory paper portrayed the efforts the spotlight is on building the necessary in- already undertaken at international level stitutional structures, thereby taking account and those still to be expected in seeking to of societal and medical progress. And in this substantiate the right to health (Aart Hen- context, such a right to health represents a driks). The General Comment adopted in major and urgent concern. It could contrib- the year 2000 on Article 12 of the Interna- ute to achieving the goal of comprehensive tional Covenant on Economic, Social and healthcare provision, but is simultaneously Cultural Rights (ICESCR) delivers crucial burdened by the problems that always and insights into the conceptual specification of

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the right to health. It shows that the right cal attention in the event of sickness. Sys- to health cannot be equated with the right tematically speaking, the state is responsible to being healthy. Rather, in formulating the for respecting and protecting its inhabitants, aim of enabling individuals to enjoy the high- and for granting access to benefits and serv- est attainable standard of health, a twofold ices. condition is put forward: the right to health is first of all reliant on the individual's bio- In taking Brazil and Germany for the coun- logical and socio-economic circumstances, try comparison, the focus was on a threshold and secondly, on the financial resources of country and a developed country. In one re- the government. This limitation was reflect- spect, this provides a means of contrasting ed in the rejection of the WHO definition different levels of development. At the same of health upon framing the Covenant. The time, however, the two-country comparison WHO defines health as "a state of complete can contribute to ascertaining common ap- physical, mental and social well-being and proaches of legal doctrine, given that the not merely the absence of disease or infir- German doctrine of law meets with a big mity". Accordingly, elements of the right to response in Brazilian adjudication and juris- health within the meaning of the Covenant prudence. Both countries have recently wit- include availability, i.e. the existence of a nessed significant court rulings in the field sufficient number of health facilities; at- of health legislation that supply a promising tainability, i.e. non-discriminatory access in point of reference for further study. Over and physical, economic and informational terms; above that, the international perspective was acceptability, i.e. respect for ethnic and cul- broadened by including two additional coun- tural distinctions; as well as the necessary tries in the conference, namely South Africa quality of healthcare benefits. The second (Marius Olivier) and Mexico (Miguel Car- paragraph of Article 12 ICESCR specifies bonel), both of which face challenges similar the obligations of the state as follows: re- to those of Brazil. The respective economic duction of infant mortality; improvement of and constitutional background was elaborat- environmental and industrial hygiene; pre- ed for all countries (Ulrich Becker, Ingo Sar- vention, treatment and control of epidemic, let, Ricardo Lobo Torres) as was the concrete endemic, occupational and other diseases; administrative and technical implementation and creation of conditions which enable all of their healthcare systems (Markus Sichert, persons to obtain medical service and medi- Rodrigo Brandão, Carlos Alberto Molinaro,

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Daniel Sarmento). It should be emphasised od, the focus had been on affirmative action that in Brazil the enforcement of a right to and Broad-Based Economic Empowerment medical treatment through court action is as equality-promoting measures adopted in a widespread phenomenon, despite general South Africa. In the period under review, difficulties inherent in the public health this discourse gave way to the more specific care system. These related issues were im- subject of the old-age grant as a means of pressively depicted at the conference. Con- overcoming inequality. ference volumes are to be published in the English and Portuguese languages. Social assistance in South Africa consists of Ulrich Becker three main programs: (1) pensions for the elderly, (2) grants for the disabled and (3) grants for the support of poor children (the 4.3. Equality through Law other grants are the war veterans' grant, the foster care grant and the care dependency One of the fundamental questions of dis- grant). Old age and disability pensions are tributive ethics is how benefits and burdens set at relatively generous levels for the de- should be distributed between people. One veloping world. The 2007 level is R 870 per long-standing answer to that question is the month, or about $115 / €87. Relative to this ideal of equality. Equality may have replaced amount, the child support grant is set at a liberty as the central topic of contemporary low R 200 or about $25 / €19 per month and political and legal discourse. In the attempt is only payable for children up to and includ- to answer the question whether legal strate- ing the age of 14. All three grants are means- gies can contribute to the ideal of equality, tested. A total of almost 12 million people (or one must in each instance ask what one is 25 percent of the total population) receive in fact trying to equalize by means of legal one or other social grant. strategies; acknowledge that the process may involve treating people unequally; and finally South Africa first introduced social pensions be careful not to use the concept of "equal- (also referred to as the old-age grant) for ity" as a mere rhetorical device when in fact whites in the early 1920s, mainly as a social talking about deeper underlying values that safety net for the minority of white workers have nothing to do with strict egalitarian not covered by occupational pensions. The principles. In the preceding reporting peri- pensions were gradually extended, but with

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very dissimilar benefit levels, to other racial their households, such as children. Men, groups. Only in 1944 did the pre-apartheid on the other hand, tend to spend their pen- state extend the social pension to include sion on food and resources for themselves. members of other race groups, and even As a result, the presence of a female pen- then, pension payment size was legally deter- sioner in a household is associated with a mined by race at a ratio of 4:2:1 respectively reduction in the level of household poverty, for Whites relative to Indians/Coloureds rel- which is one of the main aims of the social ative to Africans. Pressure for equity in the assistance system in South Africa. treatment of racial groups became strong to- Ockert C. Dupper wards the end of apartheid, and in 1989 the government made a commitment to achieving racial parity in the pension program. In 4.4. The Social History of Pension 1992 the means test was modified and uni- Insurance in the German Empire: fied across all races. The system was entirely 1871-1914 de-racialised in 1993, just one year prior to the first democratic elections. This research project was developed in collaboration with the Max Planck Institute for However, in one important respect the old- European Legal History in Frankfurt (Stol- age grant remains overtly discriminatory. leis). It is based on a cooperation agreement Since the mid-1930s, the pensionable age between our two Institutes, providing for the for men and women has been set at different joint funding of a half post with a term of two ages, namely 60 for men and 65 for women. years. On the one hand, the project is em- During 2006, an application was launched in bedded in this institutional network; on the the High Court to have the distinction de- other, it seeks to profit from other interdisci- clared unconstitutional. The applicants (all plinary approaches in its subject matter. The indigent males between the ages of 60 and research is conducted by a historian. The 64) submitted that the distinction infringed MPI for Social Law offers the unique pos- three constitutional rights, namely the right sibility for incorporating international pen- to equality (section 9), the right to human sion insurance law into the discourse and for dignity (section 10) and the right to social se- evaluating the related social law literature. curity (section 27), and that no justification existed for such a distinction. They asked that the pensionable age for both men and women be levelled down to the qualifying age of 60.

The application was opposed by the South African government. The government ar- gued that the differentiation between men and women is justifiable because it aims to redress inequalities which arose from previous gender-based discrimination in South Africa. The government offered statistics to support the argument that women between the ages of 60 and 64 were in a more vulnerable position than their male counterparts as a result of the impact of colonialism, capitalism and apartheid on social relations in South Africa. Women lag noticeably be- Research Aims hind men in each category of well-being: education, employment, the burden of un- Previous research tended to concentrate paid care work, health, housing and access heavily on the legislation and/or the political to services. In addition, the government process leading up to the first Law on old-age presented studies showing that female pen- and disability insurance, adopted in 1889. sioners tend to spend their pensions not This project, by contrast, is devoted to corre- only on food and resources for themselves, lations between old-age insurance legislation but also on other vulnerable members of and the population groups directly or indi-

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rectly impacted by it. Given the interdepend- State of Project Work ent relationship between politics and society, two questions arise: On the one hand, how Although the project can make use of sourc- did interested circles push ahead policy for- es collected and published by the researcher mation and legislation in the field of old-age herself (vol. 6/II of the "Quellensammlung protection? On the other, how did progres- zur Geschichte der deutschen Sozialpolitik sive lawmaking reflect back on society? The 1867-1914"), further archives were viewed evaluation of social statistics (e.g. population (Bundesarchiv, Zentrum für Sozialpolitik, and occupation censuses) as well as official Bayerisches Hauptstaatsarchiv). Beyond that, sources (e.g. official bulletins of the Reich In- official (published) reports and statistical se- surance Office) and narrative accounts (e.g. ries play an important role. The work con- case files of the arbitration courts) furnishes ducted so far has produced two sub-studies: specific points of reference for the local ef- "Geschlechterpolitik und Alterssicherung" fects of this novel insurance form. [Gender Policy and Old-Age Protection] (DRV Heft 2-3/2007) and "Representations Structure and Content of Social Justice in the Discussions about Old-Age Pension Insurance in Germany", The planned study consists of four more or which has been positively reviewed by the less consecutive parts: 1) the workers' move- German Historical Institute in London for ment and workers' insurance, 1871-1881; 2) publication in its Bulletin. the path leading up to statutory pension in- Ulrike Haerendel surance, 1881-1889; 3) the era of social law practice, 1890-1911; 4) old-age protection policy in the wake of the white-collar work- 4.5. Crises of the Welfare State: 1965-1995 ers' movement, 1900-1914. This construct reflects the attempt to combine chronologi- From Reform into Crisis – The West cal and content-related aspects. German Welfare State: 1966-1982

The first phase was definitely dominated Using archival sources, most of which have by the industrial workers' movement, in the been made accessible for the very first time, process of which workers were constituted as this project seeks to investigate a phase of a "class", and which can thus be regarded as exceptionally strong welfare state growth and trigger for the Empire's social reform endeav- the subsequent turnaround triggered by the ours. The second phase stands for the politi- first oil price crisis, which marked the start cal process that led to the first comprehen- of the austerity period. In correlating and an- sive legislative project in the field of old-age alysing the rise, peak and reversal of welfare protection (Law dated 22 June 1889). Unlike state expansion, the study sheds light on this most of the literature, this part focuses more reform era, revealing all of its ambivalence strongly on the influence of societal forces and as a problem-solving and problem-producing pressure groups. The third phase is character- epoch. In contrast to older interpretational ised by social law practice. This part explores patterns of contemporary history that prima- how provisions of the initial law were actu- rily regard the years of post-war prosperity un- ally applied, and what disputes and review der the aspects of working off past problems procedures arose. One aim here is to demon- and successful modernisation, this research strate to what great extent local differences perspective accentuates the long-term con- among workers – depending on urban, rural sequences of modernising processes and the or regional factors as well as sex and qualifica- genesis of new problem situations. tions – impacted the application of law. The other intent is to show that the subsequent In an ever more transnationally networked amending laws (1899 and 1911) were clearly world, nationally dominated fields of action shaped by practical experience gained, say, in such as social policy can no longer be por- the ascertainment of occupational disability. trayed adequately without their international Finally, the last phase is marked by the central references. It is in this context that one must role of two groups who had for the most part also ask about the role of international ex- been eclipsed by insurance legislation until pert cultures in socio-political decision-mak- 1911: white collar workers and widows. ing processes as well as about the increasing

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Europeanisation and transnationalisation of The "lowermost net" of the welfare state acts social protection since the 1960s. as a sensitive indicator for the effects of economic and socio-structural change. These The Emergence of Transnational "challenges facing the welfare state" impact- Expert Cultures and their Influence on ed the states of Europe in a similar manner, Socio-political Legislation through the but occurred on differing social security lev- Transfer of Leading Ideas, Knowledge els and in differing political, economic and Bases and Institutional Solutions socio-cultural settings. As debates over pov- The initial step identifies the transfer actors erty are closely linked to the way West Euro- and arenas. Subsequently, the conditional pean welfare societies assess themselves, the factors that either fostered or blocked the history of poverty and social inequality may exchange of socio-political ideas are investi- be conceived from a comparative perspective gated. Thus, transfer effects are highly con- as the "seismic history" of perception, mental spicuous in action fields in which pressing processing and political handling of the glo- problems coincided with the realignment of bal epochal upheavals initiated in the 1970s. academic reference disciplines, for example This history helps to understand both the so- in education policy and the reform of psy- cial stratification of European industrialised chiatric care. Conversely, firmly established societies and the welfare state as a central interest structures were apt to considerably structural element of this type of society. impede the transfer of ideas, as was impres- sively shown, say, by the delayed reception In modern industrial societies, the manner of the international debate on humanising in which social inequality is reflected and working life. tackled politically tends to differ along national lines. The research project thus opted Changes to Conditions of National So- for a comparison between Germany and the cial Policy Action through Internation- United Kingdom in order to contrast these alisation and Europeanisation of Social differences. The two countries' welfare state Law: Underlying Reasoning arrangements can be allocated to typologi- Ambivalent findings emerge here. On the cally differing basic models. The comparison one hand, debate over the loss of nation- is conducted along three guiding axes: The state sovereignty may be interpreted in this socio-historical perspective focuses on the context as part of a larger transatlantic dis- development of income inequality and the cussion about changed options for state different kinds of group-specific poverty risks. policy action – a discussion that had been The discursive-historical perspective centres going on since the 1970s under the catch- on the different forms in which poverty is per- phrase "crisis of government". On the other ceived and defined in the sciences, the pub- hand, an outright "discovery" of Europe as lic and in politics. And the political-historical a socio-political action field simultaneously perspective explores poverty policy as an ele- occurred on the German side, thus decisive- ment of welfare state crisis management. ly contributing to the revival of this long idle field of European policy. In terms of its research strategy, the investigation aims to retrace the last third of the 20th Fractured Affluence: Poverty, Economic century as a phase of radical change in modern Crisis and the Welfare State in Germany industrial societies, to profile social inequality and the United Kingdom in the Last Third as a key category for the historical analysis of of the 20th Century contemporary society, and to establish a close analytical nexus between social history and Since the end of the "Post-war Golden Age", the history of the modern welfare state. European societies have been witnessing the Winfried Süß reappearance of a phenomenon which they had thought overcome: the return of manifold forms of poverty. In examining poverty policy, 4.6. The Reform of the World Anti-Doping the study is spotlighting a basic function of Code the welfare state that became all the more important, the more the Keynesian full-employ- As a "shovel without a blade" or a "cart with- ment welfare state slithered into crisis. out a wheel" is how critics described the

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WADC reform, expected changes and open legal issues (Haas). The reason why the WADC needed to be reformed so early on is attributed to regulatory gaps that soon became apparent after its adoption in 2004. The amendment places individual-case circumstances in the foreground and provides a wide margin of discretion for im- posing bans on athletes. As a rule, the two-year penalty is to remain applicable. Very severe cases can, state Anti-Doping Act recently adopted in however, be liable to a four-year penalty. In Germany. These were also the introductory particular circumstances, more stringent or words (Zimmermann) to the symposium on mitigating exceptions to the regular penalty the "Reform of the World Anti-Doping Code are possible. In addition, the introduction of (WADC)", held on 5 October 2007 in Ham- the principal witness regulation is seen as an burg by the Forum on International Sports opportunity for exposing doping schemes. Law of the Hamburg-based Max Planck The hope is to set worldwide standards and Institute for Comparative and International to combat doping more effectively as a re- Private Law and this Institute. Current dop- sult of such harmonisation. The interna- ing revelations have triggered widespread de- tional regulatory framework needed to that mands for state regulation. This is because end has already been created by way of the many people feel that the fight against dop- UNESCO Anti-Doping Convention. All in ing on the part of international and national all, the reformed WADC is considered a firm sports associations lacks effectiveness and step in the right direction (Haas). power of enforcement (Becker). Against this The two above papers were followed by background, the symposium was devoted to commentaries on WADC amendments by a critical discourse on the WADC draft re- the representatives of athletes (Rodewald, form, which has meanwhile been adopted Jaksche) and sports associations (Oswald) within the frame of the World Conference as well as sports lawyers (Lehner). World- on Doping in Sport, which took place from wide harmonisation was stressed by all as a 15 to 17 November 2007. prime necessity (Rodewald). Moreover, there is an urgent need to close gaps in legal and The introductory paper outlined the previous controlling systems, and to lead all national rulings of the Court of Arbitration for Sport associations towards a streamlined control (CAS) on the World Anti-Doping Code organisation. The much criticised "one-hour (Martens). The lecture began with a look rule" is considered extremely dangerous and at the strict liability principle. This princi- inexpedient owing to its great susceptibility ple was only recently confirmed as being in to manipulation. Another central approach conformity with the law by the Swiss Federal is seen in the application of uniform stand- Court in the proceedings concerning the cy- ards also to medical exceptions. The prin- clist Danilo Hondo. An additional focus was on the list of prohibited substances (so-called prohibited list) and its composition, which is highly disputed among lawyers, physicians and sport scientists. Nevertheless, "each case on its own merits" should remain the key criterion, thus the upshot of the paper. The depiction of CAS rulings on doping was followed by remarks on the causes leading up to the

77 REPORT 2006-2007

cipal witness regulation is regarded as both despite existing controls (Haas). These struc- an opportunity and a risk. Athletes who only tures can only be annihilated through mu- make tokenistic statements that do not help tual efforts by the state and sports associa- to clarify doping facts must be excluded from tions. The associations are often "led around the circle of beneficiaries. by the nose" by athletes and their sponsors. One assertion was that widespread doping in A highly significant fact is that athletes who cycling virtually forces athletes to become part want to dope are offered substances not yet of the system in order to be successful (Jak-Jak- available on the market. All circumstances sche). Another criticism was that the WADC point to excellently functioning criminal reform had failed to sufficiently incorporate structures (JakscheJaksche). A further complaint was athletes' views. To ensure independence the adverse development of the principal wit- from the interests of associations, neutral ness regulation (Figura) and the frequently and autonomous arbitration courts ranking exhibited intransigence on the part of dop- above the association courts were deemed in- ing athletes who, like Jaksche for instance, dispensable. The principal witness regulation regard themselves as "not guilty" figures in was praised and regarded as the key element a coercive system (Figura). The flexibility of of the reform as it offers incentives to break penalties under the new WADC is expected free of the system. A further demand was to to encumber the work of CAS judges, but make out-of-competition tests more effective is viewed as a challenge to look forward to by establishing cross-national "anti-doping (Martens). Concluding, it was stressed that, centres" within about three hours' reach of notwithstanding the amended WADC, more every athlete. At the call of those in charge, courage is needed in framing sport regula- unannounced doping controls should be con- tions more simply and clearly in the future ducted at irregular intervals. (Haas). The Code displays an utmost degree From the viewpoint of Olympic summer of complexity and is scarcely comprehensi- sports associations, the former WADC con- ble to jurists and non-jurists alike. Future retained numerous gaps (Oswald). The propor- forms should aim for the adoption of straight- tionality of penalties remains the chief issue forward and easily understandable rules. here. One solution proposed is to apply penal Matthias Knecht law principles in the form of "sentencing". In particular, the individual merits of each case and individual blameworthiness should 4.7. Emeritus Workplace: Hans F. Zacher be taken into account. Another proposal is to determine only a penalty framework and The Complicated Wholeness Inherent in to leave individual penalties up to the well- the Meaning of "Social" tried assessment principles employed by sports and association courts. This solution All thought and discourse about the no- is reflected in the amended WADC. tion of "social" is subject to the challenge The problems of the former WADC are of a "twofold" dialectic. This dialectic may above all seen in the burden of proof and be conceived primarily as a complementary individual case merits (Lehner). Thus there relationship between that which is unspe- are demands for a renunciation of the strict cifically general about the term social and liability principle and the existing burden of the specific meaning of social that is criti- proof regulation set out in the penalty sys- cal of inequality. Thus, there is the dialectic tem under sports law. The present rules are between the unlimited diversity of appear- thought to contradict due process principles. ances, arrangements and significations of Fault is moreover found in the inappropriate human cohabitation, on the one hand, and protection of athletes' rights and the insuffi- the correction and steering of societal condi- cient observance of the proportionality prin- tions towards "more equality", on the other. ciple. The proposed range of sanctions from This dialectic is "twofold" in the sense that three months to four years is assessed as a it is realised, first, through private and pub- step in the right direction. lic-societal conditions and modes of life and, second, through politics, law and other mani- The subsequent discussion (chair: Becker) festations of the state. This produces a dense began by pointing at the highly criminal dop- network of combinations: unspecifically ing systems that have been able to emerge social x society; unspecifically social x the

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state; specifically social x society; and spe- comprehensive indicators for the social qual- cifically social x the state. All of these com- ity of a society and its polity. Or if – because binations entail prerequisites and effects for a concept is lacking that explicitly embraces all other combinations. And always, a valid the entirety of the state and society – the answer to the question of the social quality terms "social state" and "welfare state" lead of a society constituted within a state – even to the temptation to identify "what is social" if this question is meant in the specific, in- with manifestations of the state. In truth, equality-critical sense of "social" – is found the meaning, possibilities and effects of all only if all components are perceived in their inequality-critical (specific) connotations comprehensive interdependence: the unspe- of "social" always depend on the conditions cifically general sentiment and effectiveness preset by its general (unspecific) connota- of all (private and public) societal elements; tions. And the meaning, possibilities and the unspecifically general manifestations of effects of social intervention by the state the state; the respective specific, inequality- in turn depend on the conditions preset by critical modes of conduct and effectiveness (private and public) society. of (private and public) elements of society; and, finally, the specific, inequality-critical The relevance of these distinctions becomes manifestations of the state. clear if the specific, inequality-critical social elements are incorporated within the bun- In view of such interdependence, the above dled aims of the liberal social state: prosper- challenge must be seen in resisting the temp- ity, freedom, security, equality and protection tation to overestimate the specific meaning against need. The liberal social state differ- of social as well as state manifestations, entiates between absolute equality inher- while neglecting the unspecifically general ent in the subsistence minimum and rela- meaning as well as the societal component. tive equality within a setting of prosperity, The inequality-critical specific social ele- freedom and security. And the state thereby ments and/or state manifestations are there- prefers this relative equality which, although by isolated and ultimately set pars pro toto as faced with the conflicting priorities of pros- being one with "what is social". This occurs perity, freedom and security, derives its ad- if, say, social benefit quotas (as shares of the ditional humane value from these conflicting specific social transfers granted by the state priorities, just as it enhances the humane out of the national product) are regarded as value of these conflicting priorities. The at-

79 REPORT 2006-2007

tainment of this value structure is feasible rules and social benefits. "Equality through only through the interplay between the state compensation" has therefore shaped the im- and society, between inequality-tolerant and age of what is specifically social. The provi- inequality-critical conditions, and between sion and guarantee of non-economic goods, regulatory and executive forces. on the other hand, fulfils the precept of equality through the universality of benefit This problem area has been approached offers and services. "Equality through uni- from two angles. The one approach is inher- versality" thus proves an alternative strategy ent in the concept of "social market econ- for achieving equality. It is social in both the omy" (Sozialstaat und Prosperität, 2006). unspecifically general and the specifically in- The social market economy is a central equality-critical sense. medium that bundles and fulfils the aims of prosperity, freedom, security, equality and The other approach taken to elaborate these protection against need. The market econ- correlations was found in so-called multi- omy produces prosperity, provides room for level systems. Where the notion of social is freedom, activates society and permits the accomplished in a multi-level system, the state to focus on ensuring competition and role of the state becomes differentiated (e.g. the protection of non-economic goods. The within the multi-level European system, the competition-based market economy is a state must take account of European struc- system characterised by a low level of regu- tures). But also the relationship between the lation and state intervention and, hence, a state and society then takes on a new form. system that seeks to include society in ac- States constitute societies. Multi-level sys- complishing the aforementioned bundle of tems raise the following question: At which aims. Yet the market renders equality moot, levels is society – or: are societies – consti- thus calling for a corrective. And that is tuted? The above-outlined basic pattern of where the equalising concern of the state the wholeness inherent in the meaning of so- comes into play – however indispensible cial thus becomes amenable to further com- private and public societal forces also may plexity. New constellations and new images be. The success of this largely self-support- arise, both for the realisation of the social ing economic concept and the recognition it objective and for the structure of society and has found have nevertheless caused another its relationship to the state. dimension of political and societal responsibility to recede into the background: the Initial access to this subject matter was responsibility for (exclusively or essentially) gained through the work on the social fed- non-economic goods – the responsibility eral state of the Republic of Germany (Der for culture, education, health care, trans- soziale Bundesstaat, 2003). The following is- port, other infrastructure, internal security, sues were examined: the allocation of society and the like. The provision and guarantee to the aggregate entirety of the nation state; of these goods is of utmost importance for the extensive responsibility of the constitu- the accomplishment of the bundled aims ent states (Laender) for the provision and of prosperity, freedom, security, equality guarantee of non-economic goods and thus and protection against need. However, this for "equality through universality"; and the field of political and societal responsibility primary responsibility of the federal govern- lacks a simple code – an essentially finished ment for "equality through compensation". programme such as that inner code of the These reflections led up to the European Un- competition-based market economy. In ion (Der europäische Sozialstaat, 2008). An particular, it also lacks correspondingly fin- entirely different configuration came to light ished principles for the allocation of roles to here: the primarily member-state orientation the state and society of societies; the specific integration of a Eu- ropean society through market economy; the Worth exploring, above all, was the relation- accompaniment of such integration by so- ship between this sphere of responsibility cially flanking the freedom of movement; the and equality. Specific forms of social inter- primary responsibility of the member states vention that make the social market econo- for the specific inequality-critical social el- my "social" essentially consist in compensa- ement, and for the provision and guarantee tion for disadvantages by means of protective of non-economic goods; the manifold over-

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lapping of these member-state competences pre-legal norms – just as tensions between through Community law provisions and in- the limitedness of available resources and stitutions; and the overt groping for "a social the dimensions of ("titled" and "untitled") Europe" (thus spanning the unspecifically social demands can always explain why ac- general as well as the specific notion of "so- tions fall short of what was legally agreed. cial"). As one knows today, social-programmatic constitutional norms say nothing about the The Normative Background and social condition of a polity (Das "Soziale" als Expression of "Social" Begriff des deutschen und des europäischen Rechts, 2006). The term "social" was a modern European ne- ologism. Initially, it had a descriptive mean- Sustainability and Intergenerational ing. Its normative connotation emerged in Solidarity only a very vague manner. From the mid-19th century, "social ideas" began to materialise The most significant growth in the po- into concrete steps, thus turning the word litical, pre-legal world of social norms has "social" into something conceivable. These more recently been reflected in principles early institutions exemplified the normative that demand constructive concepts for the meaning of the term. As "social achieve- legal configuration of cross-situational oc- ments", they were (purportedly) irreversible, currences. Indeed, social benefit law has albeit capable of improvement and exten- always been time-oriented and responsive sion. The expression of "social" was thus a to processes – or more precisely, to past oc- priori "path-dependent", and has remained currences. Social benefits mirror histories of so until this day. Yet also the demand for ab- provident provision (provisioning schemes) stract norms was upheld as a means of lev- and histories of responsibility (social com- elling criticism at existing achievements and pensation schemes) as well as, to a lesser their further development. In order to give extent, histories of behaviour (selectively, in more effect to social demands, additional assistance and promotional schemes). Con- principles and corresponding terms were versely, the sustainability principle, which drawn upon. Old denominators were newly was discovered in connection with envi- accentuated: "social justice" or "social secu- ronmental issues and was soon to become rity". New denominators were formulated: a matter of course, has also set the sights "solidarity", "participation", "inclusion", and of social policy on its intrinsic meaning of the like. They remained ambiguous, however. future responsibility. Questions relating to And they remained philosophical, political or "demographic change" urgently require solu- pre-legal norms. They are still sources of en- tions that interlink the past with the future. ergy for the term "social", but they have no The existing principles of justice and solidar- major steering effects. And they have no sat- ity have thus acquired an added dimension: isfactory outcomes. Their critical potential intergenerational justice and intergenerational is inexhaustible – for there is no status quo solidarity (Das Wichtigste: Kinder und ihre that does not exhibit "equity gaps"; no feasi- Fähigkeit zu leben. Anmerkungen zur inter- ble advantage that could not be additionally generationellen Solidarität, 2007; Pflichtteil demanded in the name of "solidarity". "Path und intergenerationelle Solidarität, 2007). dependency" and the whirring normative backdrop are major characteristics of the re- The Responsibility of the Social Law form problem. Doctrine

The evolvement of pre-legal norms is accom- Important though higher-ranking norms may panied by parallel attempts to create higher- be for giving impetus to and for assessing ranking norms of positive law: state objec- the development of social elements, these tives; fundamental social or human rights; elements can only find reliable expression and social programmes enshrined in consti- in statute law and supplementary case law. tutions, European and international treaties, The academic community is called upon sometimes also in statute law (social code). to explain this statute law in its systematic Something "different" or something "more" structures. It is also called upon to depict the can almost always be thought of by virtue of contents of positive law in such a way as to

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enable users of law and those affected by it to not they are incorporated in the research recognise how law is to be applied to individ- conducted by the Institute. For the most ual circumstances of life. Both tasks together part, the Institute-related work stems from are the responsibility of legal doctrine. Legal the period of the author's directorship and doctrine can only become valid or be applied has been continued by and in collabora- if it is based on a functional analysis. In this tion with the Institute staff. These projects sense, it also functionally renders account of are reported upon elsewhere, so there is no the purposes served by law (Sozialrecht und need to discuss them here – meant above Rechtsdogmatik, 2006; Entwicklung einer all are the projects on "The Law on Behalf Dogmatik des Sozialrechts, 2006). of Persons with Disabilities in Europe and Asia" (II.2.11.), "Family Policy in the Ageing The Development of Social Benefit Law Society – A German-Japanese Comparison" (II.2.17.) and "German-Japanese Joint Re- Social benefit law is a highly differenti- search on Social Security" (II.2.10.). ated and constantly changing law. Keeping Beyond the framework of the Institute, the track of these changes and portraying them author is involved in manifold other projects, therefore constitutes a necessity of its own only a few of which are pinpointed below. (Sozialstaat und Rechtsschutz, 2006; Ge- meinsame Fragen der Organisation und des European Social and Family Policy Rechts der sozialen Leistungen, 2007). An especially enticing perspective for reflecting In continuing the project of the Europäische on the main features of social law develop- Akademie on European social policy, an in- ment in Germany since the late 1960s was ternational seminar at the University of Tartu rendered on the occasion Franz Ruland's re- was devoted to a comparative investigation tirement from the management of the Ger- of Estonian family policy, notably in compar- man Pension Insurance Fund, by retracing ison with Finland and against the backdrop his academic and professional career (Franz of approaches to an EU concept of family Ruland 65. Eine Zwischenbilanz, 2007). policy (Enabling Social Europe, 2005).

Globalisation Estonian social and family policy, which must above all cope with the task of trans- All reports ever written on the development formation as well as with the consequences of German social law primarily had to deal of EU membership, has so far developed with the immanent problems of the national only selective measures for the promotion of legal system. But they also had to address families, and these are regarded as insuffi- three problem areas that changed German cient by the general public. These measures social law from the outside: German unifica- are also considered to lag clearly behind the tion, European integration, and globalisation. concepts of other states, particularly those of On an ever increasing scale, however, there northern Europe. In view of the demograph- has been a necessity to accept the challenge ic situation in Estonia, characterised by a which arises for the one world in the sense of low birth rate, rising life expectancy and a a global social order – whether a global order high incidence of emigration, a family policy of human co-existence (Kinderrechte. Ein integrated in economic and social policies is Beispiel für die globale Herausforderung des likely to enjoy top priority in the future. In Rechts, 2007) or a global order for states as the process, comparative analyses conducted well as for non-state and transnational forces by other states can gain considerable signifi- (Integrating Global Entirety by Integrating cance. Diversity, 2007). Hans F. Zacher Adjustment of Old-Age Protection to Demographic Circumstances

4.8. Emeritus Workplace: Bernd Baron The need to adjust old-age protection only to von Maydell demographic challenges (rising life expectancy and declining birth rates) has long been The projects of this emeritus workplace can recognised; however, the lawmaker has been be distinguished according to whether or reluctant to draw the pertinent conclusions

82 II. RESEARCH

for statutory pension insurance. In addition, this in turn causes potential beneficiaries to adopted regulations often fail to fit in well question the sense of providing for old age with the overall system of retirement secu- through contribution payments and under- rity. mines the acceptance of a pension insurance

Contribution-based pension insurance financing has been retained although the demand for its realignment, from contributions to taxes, is widely accepted – mainly for reasons of international competition. Hence, the financing issue remains a central one and is also discussed in other states. A lecture in Sao Paolo on the occasion of the 17th Ibero-American Congress on Labour and Social Security Law dealt with these problems from a comparative law perspective.

One instrument for adjusting pension insurance to prolonged life expectancy is the raising of retirement age. Such a measure system based on mandatory contributions. has been resolved in Germany for the future. The legislature has sought to compensate Consequently, one must ask what benefits for the prospective lowering of the pension will become effective for those who do not level by introducing a government-backed attain this extended age limit in future (ow- private pension plan (the so-called Riester ing to early retirement, unemployment insur- Plan named after the Minister who drafted ance, disability insurance, etc.) and what can it). Private provision has thus become the be done to ensure that these benefits cover instrument for achieving the welfare state the necessities of life. Similar problems have goal of retirement security. Whether this goal arisen in Poland where a new pension sys- can actually be accomplished is nevertheless tem has been introduced, comprising a pay- doubtful. On the one hand, private provision as-you-go and a funded component as well as is not obligatory so that precisely low-income a raised retirement age limit. Hence, Poland earners will not make use of it, notwithstand- must likewise seek solutions for early retire- ing state subsidisation. On the other hand, ment benefits and the securing of a suffi- the Riester pension is counted towards the cient pension level. This was the subject of basic old-age pension. Therefore, the private a seminar organised by the Solidarnosc trade provisions of retirees with low pensions and union on the basis of a comparison between no other retirement income could fail to yield Poland, Germany and France. an economic gain. This could further diminish the attractiveness of the Riester Plan for Besides raising the retirement age, a further low-income earners. The Riester pension measure for adjusting pension insurance to was also one of the themes of the German- meet demographic challenges is to lower the Japanese social insurance comparison (MPI pension level by altering the pension formu- Working Papers 2/2007: Social Security Sys- la. This nevertheless poses the danger that tems in Germany – Status Quo and Recent a growing number of pensions will thus fall Developments, pp. 123 et seq.). below or barely exceed the social assistance level, despite long contribution periods. And

83 REPORT 2006-2007

Organisation of Social Insurance 2. Brazil: The social security system of this country is fragmented. Its future extension For nearly a century, the basic organisational will be influenced strongly by South Ameri- structures within the German social insur- can views on enhancing privately organised ance system remained fairly rigid. In recent provision (Chile Model). At the same time, years, however, they have been loosened, however, a large corpus of constitutional thus setting changes in motion. These chang- case law on social rights exists. Parts of Bra- es are characterised by a tendency towards zil's industry are highly developed (automo- centralisation and the creation of more unity. tive industry). The need for a welfare state This applies to pension insurance as well as infrastructure is especially urgent in light of to health insurance, which is undergoing the extreme social divide between rich and extensive modification on account of the poor. planned Health Fund. Accident insurance associations, too, are altering their structures 3. Poland and Estonia: Both are transfor- in seeking to consolidate their numbers; mation states, albeit with entirely different these concentration efforts must not, how- histories, populations and economies. A spe- ever, jeopardise the fundamental principle of cific problem facing each of them, however, grouping insured companies with similarly is that they must modernise their entire legal structured risks. Centralisation in accident and economic systems and simultaneously insurance could moreover imperil the syn- adjust these to the regulatory framework of ergy effects between accident prevention, the EU. The pension schemes and family payable levies and accident frequency. The policies of both states served as examples fundamental structure of accident insurance within the scope of a study (von Maydell / was the subject of a German-Japanese semi- Borchardt / Henke / Muffels / Leitner, Ena- nar in Kyoto. bling social Europe, 2006). Bernd Baron von Maydell Mainly Investigated Countries

The countries dealt with were based on the author's previous cooperation relations and personal contacts to individual foreign scholars. These ties entailed invitations to lectures and congresses.

1. Japan: Intense exchanges of thought with scholars from the Japanese social law community have been in progress for many years and have involved several of the Institute's staff. Japan has a sophisticated social security system which – despite all differences – comprises a range of institutions and regulations that are similar to those in Germany. Above all the challenges (notably population ageing) facing the protection systems of both countries correspond with each other. To be sure, cooperation with Japanese academics is often hampered by language barriers, which moreover make it especially difficult to draw upon Japanese literature. On the other hand, personal exchanges are fostered through the openness with which Japanese researchers regard foreign problem solutions. Compara- tive social law is a far more widespread disci- pline in Japan than in Germany.

84 III. Promotion of Junior Researchers REPORT 2006-2007

1. Doctoral Group: "State jor quality deficiencies in institutional care Responsibility for Social in Germany. Security in Flux" In light of these developments and proceeding from the overarching theme of shared responsibility between the state and society, It is possible to deduce certain structures the dissertation investigates state responsi- for the division of responsibility between the bility in the field of institutional long-term state and society from the specific configura- care. To that end, the study embarks on a tion of social security systems and how they juridical comparison between the German are embedded in both statute and constitu- and the English legal system. It highlights tional law. Reforms to social benefit schemes the respective public long-term care ben- often lead to a re-allocation of responsibility, efits and subsequently examines how state in particular where demands on the "person- agencies seek to steer the activities of private al responsibility" of individuals are altered or nursing home operators in order to induce "state responsibility" is subject to substan- them to meet the respective social policy ex- tive amendments. pectations.

The participants (Grienberger-Zingerle, The main focus of the thesis is on the analy- Landauer, Matthäus, Mimentza, Quade) in sis, classification and legal assessment of the the doctoral group on "state responsibility diverse regulatory instruments employed by for social security in flux", set up in 2004, the state in attempting to meet its responsi- conduct research on this overarching theme. bility in the sphere of institutional long-term They moreover single out differing aspects care. The historically differing structural de- of state responsibility and individual self-re- signs of the two countries' benefit delivery sponsibility in their dissertations and elabo- schemes are reflected in the likewise differ- rate the ensuing issues from a comparative ing control instruments employed by the two law perspective, thereby focusing on Ger- jurisdictions. Especially in England, quality many, Switzerland, Austria, Spain, England control aspects still seem to be dominated by and the United States. traditional regulatory approaches rooted in Martin Landauer hierarchical command and control systems. By reverting also to findings obtained from the so-called regulatory sciences, the study 1.1. State Responsibility for the Provision will moreover strive to infer explicit demands of Institutional Long-Term Care on various control instruments from the sec- – A Comparative Legal Analysis of tor-specific features of institutional long- Germany and England term care. This is also to illuminate reasons for the increased reference to seemingly The demographic trend predicted for Ger- outdated regulatory concepts such as that of many's ageing population will, over the me- "command and control". The findings gained dium term, lead to a rise in the demand for from the country reports will ultimately flow long-term care arrangements in general and into a commentary on the debate over the institutional care services in particular. In fu- need to adjust general administrative law to ture, not only the number of elderly persons the specific demands posed by the enabling in residential homes is expected to rise. In state. view of the growing proportion of geriatric care cases, also the demands on providing The investigation, which centres on the anal- long-term nursing care will increase accord- ysis of legal structures of steering the private ingly. There is some doubt whether the nurs- sector in the field of institutional long-term ing home sector is capable of coping with the care, is first and foremost based on a norma- challenges which face it already, not to men- tive approach. However, it also reverts to the tion those which will arise as society ageing insights gained from neighbouring empirical progresses. In its second report published in disciplines, such as sociological research or August 2007 on the quality of ambulatory nursing science, as a means of illustrating and institutional care, the Medical Service and underpinning its own findings. of Health Insurance (MDK) pointed out ma- Martin Landauer

86 III. PROMOTION OF JUNIOR RESEARCHERS

1.2. Responsibility and its Attribution A conspicuous aspect is that historical devel- under Employment Promotion Law opments in the United States and Germany – A Comparative Law Analysis of exhibit certain parallels. On the other hand, "Employment Promotion Schemes" in their welfare/social state regimes differ deci- the United States and Germany sively in terms of whether individuals are able to assert claims against the state for a socio- "If a man does not choose to work, neither cultural subsistence minimum. In Germany, shall he eat." (2 Thess. 3.10) "He who does such a claim is derived from Articles 1(1) not work, shall not eat." (August Bebel) These and 20(1) of the Grundgesetz (GG – Basic two famous citations from utterly different Law). In the United States, any such entitle- sources describe two possible attributions ment has repeatedly been denied by the U.S. of responsibility in working societies. The Supreme Court, just as the U.S. government former puts in a nutshell the current alloca- is not generally entrusted with any protection of responsibility in the employment pro- tion duties on behalf of its citizens. Further- motion law of Germany, whereas the latter more, Article 20(1) GG obliges the German does so for the United States. This finding government to adopt a social policy, whereas condenses into one "basic rule" the diversity Article I section 8(1) of the U.S. Constitu- of legal structural differences found in the tion merely entrusts the federal government labour promotion laws on either side of the with the competence "to provide for… the Atlantic. Not only in linguistic terms can this general welfare of the United States". basic rule be applied directly to the attribution of responsibility for the phenomenon of Interestingly, despite similar social policy unemployment. In legal reality, such an at- guidelines, contemporary legal structures in tribution of responsibility is certainly much the two countries differ markedly, as does more complicated and variegated – thus the the distribution of responsibility between assumption; however, the subject matter the actors with a view to the social risk of has not been academically explored to date. unemployment. Last but not least, the at- Hence, the investigation has set itself this tribution mechanisms in unemployment task by way of a so-called phenomena-ori- promotion law likewise exhibit fundamental ented social law comparison. differences. This is most clearly revealed in the allocation of financial responsibility un- The special feature of this methodology is der the respective unemployment insurance that it "operationalises" the phenomenon schemes. "responsibility in connection with unemployment" prior to the actual comparison. In this Besides reflecting on methodological re- way, the individual phenomena of responsi- quirements, the investigation is devoted to bility and unemployment are processed both the highly detailed phenomenology of re- linguistically and socio-scientifically. The sponsibility and unemployment. The coun- next step is to formulate specific circum- try reports moreover furnish a systematic and stances that serve as indicators for the attri- contemporary description of the two unem- bution and distribution of responsibility. The ployment law regimes. actual juridical comparison then seeks to Benno Quade elaborate and give a detailed account of the definitional elements of these circumstances in the two national legal systems. Finally, the 1.3. Damage Mitigation Duties under the criteria gained by operationalising the phe- Liability and Social Security Laws of nomenon of "responsibility" are formulated Germany, Austria and Switzerland and compared in terms of responsibility attribution and distribution. For the better The dissertation takes a comparative law per- understanding of contemporary legal struc- spective in examining the duties imposed on tures, the historical development of employ- beneficiaries in the event of health-related ment promotion policy in both states as well impairments that result in claims to social as the constitutional foundations of their re- benefits. The main focus is on the coopera- spective welfare state or social state regimes tion duties of persons entitled to sickness or are extensively taken into account. disability benefits under social law, including the consequences arising from an infringe-

87 REPORT 2006-2007

ment of these duties. The damage mitigation tion duties in the compared legal systems obligation under civil law was included in and, if necessary, to trace the relevant lines the study as it closely ties in with this sub- of development in both the literature and ject matter. The selection of comparison case law. The obligation to mitigate damages countries sought to take account of the fact under liability law formed the basis for the that damage mitigation issues surface only in recognition of this duty in both the Austrian conjunction with the respective legal system, and the Swiss social security regimes – ini- but are not an independent problem of their tially only under social insurance law and own. Austria and Switzerland, the countries later extending to the entire corpus of social chosen for the comparison, have similarly law. Hence, similarities were to be expected developed and structured benefit systems in the legal situations prevailing under the so- in both their liability and social security law cial security and liability law of the two legal regimes, so that analogous problems may be systems. These similarities were nonetheless expected. The investigation was based on the also evident in German social law although premise that restitution and compensation it had not been subject to the same direct for impairments to health through the award influence. As in the case of liability law, dam- of damages and social benefits are an expres- age mitigation duties under social law con- sion of responsibility. stitute incidental obligations to take reasonable measures to remedy or mitigate health The obligation to mitigate damages under impairments, or their consequences, which liability law is not actually a legal obliga- give rise to social benefit claims. Under social tion but rather an incidental obligation that law, too, these duties function as the basis for calls upon the beneficiary to undertake what the right to refuse benefits but may in part is deemed reasonable. The beneficiary's already take effect at the preceding level of blameworthy infringement of this obligation benefit prerequisites, notably as regards the may lead to a curtailment or loss of the claim principle of "rehabilitation takes precedence for damages. Any such curtailment must be over pension payment". A major distinction in keeping with each party's contribution to vis-à-vis liability law is the unreserved obli- causation and fault. gation of the benefit-awarding institution to draw attention to the damage mitigation duty The social law part of the study seeks to elab- before its infringement can have any negative orate the statutory bases for damage mitiga- consequences for benefit entitlement.

88 III. PROMOTION OF JUNIOR RESEARCHERS

The comparison of Germany's social law integration into the Social Code), the Ger- regulations with those of Austria and Switz- man legislature created an action instrument erland has shown that, contrary to other for the award of social benefits that used to opinions found in the literature, coopera- be eclipsed by unilateral official action on the tion duties under this law must be under- part of the administration. This new instru- stood as obligations to mitigate damages. ment takes the form of agreements between The requirement of reasonability governing the social administration and beneficiar- damage mitigation under liability law has its ies concerning the award of specific social counterpart in the proportionality principle benefits, thereby stressing the beneficiaries' under social law. A significant criterion of personal efforts in return. In the early phase reasonability/proportionality under both li- of the dissertation, this novel job-promoting ability law and social law is the prospective instrument was highly topical in conjunction success of damage-mitigating measures. The with the slogan of "activating labour market legal consequences of an infringement of policy". As the study progressed, this instru- damage mitigation duties are likewise similar mental measure has been taken to illuminate under both regimes: claims to benefits are the relationship between the state and its forfeited either partially or entirely, with cau- citizens along fundamental lines. sality constituting the utmost limit of benefit curtailment. Notwithstanding discretionary The comparative law dissertation seeks to authority, any reduction of benefits must gain insights into the regulatory frameworks, not exceed the forfeited benefit claim in statutory rules and administrative scopes of case of a successful execution of measures action as well as into the limits and risks demanded to mitigate damages. Legal con- of agreements between the citizen and the sequences only take effect if the beneficiary state. The ultimate aim is not only to sort out can be blamed for the infringement of du- and comprehend all these measures, con- ties. Proof of blame is facilitated under social ceived in a bout of politicking, but also to law because benefit reductions here are only explain their (legal) functionality. allowed if the beneficiary was informed be- To begin with, this subject matter is related forehand of his/her duty to cooperate. to so-called activating labour market policy. The subsequent step describes German and Based on the findings thus obtained, the English labour market policies and how they study ends with a critical inspection of se- tie in with the strategies of international and lected problem situations encountered in supranational institutions. The study is based German pension, health and long-term care on a fundamental examination of coopera- insurance law. Essential note is also made of tive instruments, thus providing a frame for the fact that demands on the beneficiary to the subsequent country reports. This frame mitigate damages in social security matters is ultimately employed as a grid pattern of must be inseparably linked to the support evaluation. The fundamental part centres and cooperation of the benefit-awarding in- on quasi-contractual arrangements which stitutions. merely bear the semblance of contracts on Claudia Matthäus account of their structures (contractual met- aphoricity!).

1.4. Agreements in Social Law The respective country reports above all por- – Cooperative Instruments of Labour tray the jobseeker's agreement in English law as Administration in Germany and well as the two forms of integration agreement England: A Comparative Investigation set out in the German Social Code (SGB III of the "Integration Agreement" under and SGB II). The basic legal structures of German Law and the "Jobseeker's the corresponding unemployment protec- Agreement" under English Law tion schemes are likewise depicted. Case examples are then provided for the general Under the Job-AQTIV Act and in imple- remarks on reasons and aims as well as risks menting the findings of the so-called Hartz and limits of cooperative administration, as Commission (notably through the Fourth outlined in the fundamental part. These find- Act on modern labour market services and ings are then compared with each other and through the Federal Social Assistance Act's evaluated with a view to their consistency.

89 REPORT 2006-2007

The jobseeker's agreement does not offer in- on the test-bed with regard to the relevant dividuals any scope of action in terms of con- integration instruments. The SGB III inte- tract conclusion and subject matter. Even so, gration agreement has not been able to de- the administration is not allowed to operate velop properly on account of the reforms to in a "legal black hole" as it is bound by de- the labour administration and its capacities, tailed specifications and, above all, is subject given that this authority is still responsible to the substantive control of the Social Se- for the agreement's implementation. Yet curity Appeal Tribunals. This system has yet this integration agreement is important be- to face its initial litmus test, however, since cause it accomplishes the aims and options the level of unemployment has been low of cooperation in their purest form, without so far. By the same token, this means that instrumentalising them for educational and only few jobs are available, and now that the sanctioning purposes. Hence, a reinforced English economy is experiencing a cyclical application of this version of the integration slowdown, one will see whether the labour agreement is highly desirable and would cer- administration operates efficiently. And one tainly be profitable to the quality and work of will see whether the administration knows the labour administration.

how to "play the game" of incentives alter- The integration agreement under SGB II nating with pressure to accept work, as set is expected to gain importance because its out in the legal provisions, and whether in legally prescribed sanctioning automatism doing so it will be able to safeguard the social provides the administration with an efficient security system. Furthermore, it remains to steering mechanism. Precisely the jobseek- be seen whether the immense costs of the er's contractual commitment in tandem with New Deal will continue to meet with politi- the clearly defined legal options for curtail- cal backing. ing benefits upon non-compliance still offers unexploited scopes of action. The integration agreement under SGB III Maria Grienberger-Zingerle suffers above all from the regulatory framework of unemployment insurance. The unemployment scheme faces enormous challenges and will no doubt have to be placed

90 III. PROMOTION OF JUNIOR RESEARCHERS

1.5. Social Benefits to Migrants with EU member states. Relevant supranational Irregular Resident Status in Germany and international treaties are also taken into and Spain account in asking whether foreigners with irregular resident status would be entitled In recent years, migration into Europe, espe- to social benefits on the basis of these legal cially its southern states such as Spain, has instruments (vertical level). been increasing steadily. This phenomenon Janire Mimentza poses immense challenges for the social security systems in the member states of the European Union. To be sure, migration and asylum policy was declared a Community responsibility under the 1999 Treaty of Am- sterdam, and the Community lawmaker was given new competences under Article 63 of the TEC. Even so, this latter treaty provision only empowers the Council to set minimum standards for the admittance of asylum seekers, the recognition of refugee status and the attendant procedural law. Community lawmaking competence is moreover restricted since only regulations deemed necessary for Community asylum policy may be enacted. The social protection of migrants is thus left to the competence of the national legislator.

Germany and Spain are of particular interest in exploring the phenomenon of "migration". These EU member states represent two central types of immigration countries within the Union: Germany as a country that sought to recruit foreign workers in the 1950s and 1960s, and Spain as a country whose workers emigrated during that time, but which has now become a new southern European immigration country. While the foreign population share in Germany has remained practically unchanged for years, it rose sharply in Spain between 1999 and 2007, from 1.9 to 10.0 percent of the total population. The immigration report of the Spanish migration authority states that Spain is the country which admits the most migrants in Europe.

The dissertation investigates the social law position of foreigners with irregular resident status in Germany and Spain. In doing so, it places state responsibility in the foreground. A central aim of the study is to show whether such irregular residents are essentially entitled to claim social benefits in the countries examined (horizontal level). The comparative focus is not, however, confined to a mere description of pertinent benefits in the two country reports, but strives to elaborate elements of interaction and reflexive action between social law and aliens law in both

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2. Doctoral Group: "Influ- methodological and subject-related foundations. The second phase involved the presence of Constitutional entation of the group members' doctoral Law and International projects in the form of lectures. This phase was concluded in May 2007 by a workshop, Law on the Configura- which was also attended by the doctoral stu- tion of Social Security" dents of Ingwer Ebsen (University of Frank- furt). Since the summer of 2007, content-related issues have again become the topics of The dissertations of the doctoral group deal- monthly discussions. ing with the "influence of constitutional law Quirin Vergho and international law on the configuration of social security" focus on the social law systems of countries so far not at the centre of 2.1. Social Security in the Republic of the Institute's research activities. Besides the Poland aim of expanding research to include, above all, Eastern European states, the formation The investigation commences with an ex- of the doctoral group was also based on the amination of the state's highest-ranking legal realisation that the importance of normative norms which serve to shape and restrict its social security foundations is generally un- subordinate norms. The legal norms embod- derestimated when framing these systems. ied in the constitution and in international Instead, this discourse very often tends to treaties rank topmost in the hierarchy of a concentrate on basic socio-economic param- state's legal order, so that every other legal eters. In an increasingly globalised world, norm must have its origins in these norms. an exploration of normative foundations is This also applies to the provisions governing therefore hoped to contribute to the greater social rights. observance of normative aspects. The first part of the dissertation portrays The doctoral group was launched early in the Polish social security system, which has 2006 and consists of four participants (Fülöp, been subject to enormous changes in the Olechna, Liu, Vergho). The individual stud- wake of transformation and the attendant ies are devoted to a detailed depiction of the creation of a new legal, economic and social social security systems in the countries of reality. The many legal rules adopted in the Hungary, Poland, P. R. China and Portugal, process, starting with the new democratic as well as to the influence of constitutional Constitution of 1997, as well as international and international law on these systems. provisions therefore need to be investigated. This simultaneously renders new insights Following an initial retreat in February 2006, into the legal regime of a country whose law the group then met for doctoral discussions has largely remained unexplored owing to at least once a month and was joined by Ul- the political circumstances that prevailed rich Becker on these occasions. The start-up until 1989. A prime focus is on the pension phase, which lasted until about the end of reform based on the three-pillar model, the 2006, was chiefly used to elaborate common health insurance and family benefit reform,

21/22 February 2006:

Closed meeting of the doctoral group on the "influence of constitutional law and international law on the configuration of social security", Kloster Benediktbeuern.

The two-day retreat was devoted to the in-depth examination of external and internal definitions of social security systems and of the terms "constitution" and "international law", as well as to intense discussions of the methodology used for the determination of normative influences on the social security systems of the addressed countries.

92 III. PROMOTION OF JUNIOR RESEARCHERS

and on reforms to unemployment and social 2.2. Social Security in Portugal assistance legislation, given that all of these areas played an extremely subordinated role Constitutions and international law form the before 1989. At the same time, the particu- main legal framework for the establishment lar features of the Polish social security sys- of social security schemes. The dissertation tem are highlighted; these include: the lack investigates the significance of this legal of unemployment and family insurance; the framework for social security in Portugal. The separate regulation of sickness and health Portuguese social law system is of notable insurance; conversely, the joint regulation of interest because the Constitution contains disability and survivors' benefits; and broad- a detailed catalogue of fundamental social ly defined compensation regulations. The rights. Hence, a profound pervasion of social latter pertain to pension benefits awarded law by these constitutional aspects may be to victims of war and the military, army vet- expected, especially as the Portuguese Con- erans, and victims of the Nazi and Soviet stitutional Court is entrusted with appropri- regimes. ate competences. On the other hand, the country's social security regime is still quite The second part of the work is devoted to the young so that particular difficulties arise in Polish Constitution and, in particular, to the this context. And like other industrialised principles of social justice and equal treat- countries, Portugal must face the challenges ment as well as fundamental social rights. In posed by demographic and socio-economic addition, it looks at the international social developments. standards set above all by the ILO, the UNO and the Council of Europe, and examines The two prime objectives of the dissertation their influence on the configuration of social are to analyse the Portuguese social security security in the Polish legal system. system and to examine how the Constitution and international law influence this system. On the one hand, the dissertation assesses These aims are reflected in the structure the impact of constitutional and interna- of the investigation, which correspondingly tional law on social security; on the other, consists of two main parts. it depicts the social security system of the Republic of Poland. The first part begins with a definition of social Anna Karina Olechna security from both an internal and an external

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perspective, thus abstracting from the solu- The second part initially takes a look at the tions reflected in the Portuguese system. These normative fundaments – that is, the active fundamental considerations and the portrayal influencing factors – and asks which of of historical as well as socio-economic param- these foundations from the realm of consti- eters serve as a basis for the actual analysis tutional and international law are of abstract of the system. This analysis begins with the and concrete significance to the Portuguese system's institutional and financial structures social security system. In doing so, the in- and is then followed by detailed descriptions vestigation is not confined to substantive law of its component parts. The latter mainly positions in the form of fundamental rights, comprise the general regime (regime geral), or even fundamental social rights, but rather the alternative or supplementary regimes (for includes other normative requirements, no- civil servants and bank employees, among tably those governing competences for the others), the analogous regimes (non-contribu- interpretation of the Constitution. Only after tory schemes and the health service) and the these normative bases have been analysed social assistance regime (providing so-called from a comparative law perspective and in re-integration income). relation to the situation in Portugal are the

24/25 May 2007:

Doctoral workshop held by the Max Planck Institute for Foreign and International Social Law in collaboration with the Chair for Public Law, notably Social Law, Prof. Dr. Ingwer Ebsen, Johann Wolfgang Goethe-Universität, Frankfurt/Main, Max Planck Institute for Foreign and International Social Law, Munich.

Viktória Fülöp: Einfluss von Verfassung und internationalem Recht auf die Ausgestaltung der sozialen Sicherheit in Ungarn [Influence of Constitutional and International Law on the Configuration of Social Security in Hungary] Maria Angeles Martin-Vida: Anerkennung und Schutz von sozialen Grundrechten auf verfassungsrechtlicher Ebene: Rechtsvergleichende Überlegungen zur Rolle der sozialen Grundrechte in Zeiten des Staatswandels [Recognition and Protection of Fundamental Social Rights on a Constitutional Level: Comparative Law Reflections on the Role of Fundamental Social Rights in Times of State Transformation] Anna Karina Olechna: Der Einfluss von Verfassung und internationalem Recht auf die Ausgestaltung der sozialen Sicherheit in Polen [Influence of Constitutional and International Law on the Configuration of Social Security in Poland] Quirin Vergho: Der Einfluss von Verfassung und internationalem Recht auf die Ausgestaltung der sozialen Sicherheit in Portugal [Influence of Constitutional and International Law on the Configuration of Social Security in Portugal] Annett Wunder: Rechtsharmonisierung durch Auslegung der Grundfreiheiten im Lichte der Kompetenzverteilung zwischen Gemeinschaft und Mitgliedstaaten am Beispiel der grenzüberschreitenden Krankenbehandlung [Harmonisation of Law through the Interpretation of Fundamental Freedoms in Light of the Distribution of Competence between the Community and its Member States, Taking Cross-Border Medical Treatment as Example] Dongmei Liu: Der Einfluss von Verfassung und internationalem Recht auf die Ausgestaltung der sozialen Sicherheit in China [Influence of Constitutional and International Law on the Configuration of Social Security in China] Susanne Plettner: Vertragswettbewerb in der GKV unter wettbewerbsrechtlichen Gesichtspunkten [Competition for Contracts in Statutory Health Insurance with a View to Competition Law] Alexander Diehm: Rechtsfragen ambulanter Psychopharmakaversorgung in stationären Pflegeeinrichtungen [Legal Issues of Ambulatory Treatment with Psychotropic Drugs in Long Term Care Institutions].

94 III. PROMOTION OF JUNIOR RESEARCHERS individual measures of system construction sound basis for conducting other research on contemplated. Meant here are the law-mak- the Hungarian social security system. The ing and law-administering measures, and in-depth description of the current system whether they tie in with the afore-established will include the legal provisions governing normative foundations. To that end, statutes benefit entitlement as well as the diverse in- and court rulings as well as the concomitant stitutions and funding schemes for the indi- documentation are analysed as to whether vidual types of benefits. The second part of they refer to the described foundations and, the study is devoted to the influence of both if so, how they have been affected by them. constitutional and international law on the Quirin Vergho Hungarian social security system, thereby dealing with the conceptual meanings of the terms "influence", "constitutional law" and 2.3. Social Security in Hungary "international law".

After the political turnaround – that is, after A further objective is to look at how legis- the change of regime, as it is referred to in lative procedures are influenced in terms of Hungary – a prime necessity aside from the the respective texts of legal norms. This is introduction of democracy and the capital- done by analysing individual draft bills and ist conversion of the economy was to initiate the subsequently enacted laws on a content- a change within the realm of social affairs. related basis. The impact of constitutional This necessitated the reconfiguration of the and international law is likewise explored role and duties of the state as well as the re- by assessing the recorded statements of leg- definition of fundamental values upon which islative bodies, explanatory memorandums, the social security system was based. To that committee transcripts and the minutes of end, numerous constitutional amendments parliamentary debates. The actual applica- were adopted, and Hungary signed several tion of the law is reflected in the appraisal of international treaties addressing social rights. Constitutional Court rulings. Worth stress- Responding first to the most urgent prob- ing here is that the selected legal documen- lems of the "transformation society", the leg- tation, including the manner in which it islature successively enacted laws that led to has been influenced, is examined only with the creation of new institutions and forms of a view to its legal elements. That is to say, benefits. Political and academic circles soon economic, cultural and other influences are launched into debates over the demographic left out of consideration. Even so, the con- situation of society and the economic effi- currence of diverse factors will probably not ciency of the government. By contrast, the make it possible to ascertain an unequivocal legal framework underlying the newly estab- and causal legal influence in each case. lished institutions was only marginally dis- Viktória Fülöp cussed and explored. These circumstances set the backdrop for the dissertation, which thus asks whether fundamental and human 2.4. Social Security in the P. R. China rights as well as other constitutional and international norms have influenced the fram- Since the beginning of the 20th century, Chi- ing of social security arrangements. na has been in the process of constructing a modern legal system through the reception The first part of the work provides the fun- of Western law, which in practice, however, dament for the investigation into the influ- often conflicts with the social structures ence of constitutional and international law and economic conditions prevailing in this on the configuration of the Hungarian social country. Moreover, the enforceability of the security system. It begins with the defini- citizen's fundamental rights laid down in the tion of the term "social security" and goes Constitution is the biggest problem of the on to render a systematised description of Chinese legal system because these rights the Hungarian system. The systematisation are not conceived as being judicially enforce- method has been selected to enable pro- able (against the state). This is reflected in spective comparative law analyses within the fact that Chinese law does not provide the doctoral group in the form of a joint re- for a constitutional court. Consequently, not port. In addition, this methodology offers a the Constitution and its interpretation, but

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party-based decisions have steered social se- surance system was designed according to curity policy so far. World Bank specifications. Liu Dongmei The dissertation examines the construction and development of China's social security system in the wake of economic and societal transformation processes, paying particular 3. Doctoral Group: "The attention to the role of the Constitution and the influence of international law. Triangular Benefit De- livery Relationship in The thesis first looks into the framework of the Constitution, analyses its role in social Social Law" security matters and outlines future changes. In dealing with this subject matter, Chinese Subject Matter history and legal culture as well as traditional social structures are taken into account. The As a rule, services and benefits in kind are further aim is to investigate changes to the not delivered by the authorised funding insti- Constitution in the course of China's trans- tutions themselves, but by other private pro- formation from an agricultural country to a viders. This entails interaction and interde- modern industrialised state. pendence in the legal relationships between beneficiaries, providers and funding agen- The configuration of the Chinese social cies. The statutory provisions governing legal security system has been influenced to a relations between public funding institutions greater extent by international law than by and private providers vary widely among the the Constitution. China is a member of diverse social benefit schemes. In any case, the UNO and the ILO. The standards set state regulations are required to ensure the by these organisations and transposed into quality, financing and availability of social Chinese law through ratification have had services. The necessary legal framework is an extensive impact on Chinese jurispru- based on European and national competition dence. The thesis therefore illuminates the law, the EC fundamental freedoms and the application of various international conven- respective national constitutional law. tions and recommendations within the Chi- nese legal system. The intent is not only to In selecting appropriate steering mecha- ask how national laws have been enacted or nisms, the trend in Germany has been to amended on the basis of international law, abandon mandatory distribution procedures but also to determine in which way interna- and, instead, to reinforce free market regu- tional organisations seek to enforce ratified lation through competitive incentives. The law in China through effective measures. comparative law projects of the doctoral In this context, a main focus is also on the research students seek to determine above technical assistance rendered by the ILO in all how benefit delivery relationships in the the social security domain as well as on the compared countries have been framed and activities of economic agencies such as the how these may affect current developments World Trade Organisation (WTO) and the in Germany. The overarching aim of the doc- World Bank. toral group is the depiction, systematisation and problem-oriented analysis of underly- Attempts by Western developed states to ing and generally valid structures of benefit create a specific mechanism for enforcing provision in social law through private other and monitoring social standards within the parties. frame of the WTO have considerably shaped social security legislation and legal practice Organisation in China. In order to adapt Chinese law to international trade rules, China enacted a The third doctoral group was established in host of laws following its accession to the October 2007, starting with two doctorands WTO. The World Bank, too, has had a no- (Schön, Vilaclara), and followed by a third table effect on the Chinese social security (Neueder) in December 2007. In January and system. Thus, for instance, the pension in- February 2008, the group will be completed

96 III. PROMOTION OF JUNIOR RESEARCHERS by two additional doctorands (Meeßen, Sch- this goal in turn necessitates the coordina- legelmilch). All group participants will be en- tion of national social law systems. This has gaged in comparative law research but will long been the subject of manifold regula- work on different branches of social benefit tions within the European Community. Yet provision. Modelled on the existing doctoral the increased internationalisation of world- groups, the new unit will meet at regular in- wide labour markets has shifted the effects tervals under the leadership of Ulrich Becker of labour migration on the protection of so- to elaborate comparative law methodology cial rights to this international level as well.

as well as key concepts and legal framework Where comprehensive international coor- conditions relevant to the subject matter. In dination is lacking, gaps in protection may the process, the group members will report arise. The example of German-Australian on the developmental stages of their own relations was taken to investigate this risk work and discuss these with the other par- in the above dissertation. The main focus ticipants. A several days' retreat is scheduled was on occupational accidents and diseases, for January 2008 to stake out fundamental which not only involve the social protection issues of the group's research. of migrants but also raise the question of em- Ilona Vilaclara / Markus Schön ployers' tort liability. On the one hand, problems of lacking coordination in this area relate to conflict-of-law issues concerning insurance obligation or en- 4. Individual Dissertation titlement; on the other, they arise in connection with the fulfilment of requisite criteria Projects abroad and with the export of benefits. Apart from that, German statutory accident insur- 4.1. The Occupational Accident and ance with its substitution of the employer's Disease Risk in Transnational private law liability diverges markedly from Employment Relationships – Social the liability regulations governing Australian Security and Employer Liability in the schemes. Consequently, if the respective so- International Social Law of Germany cial insurance statute and the accident loca- and Australia tion do not coincide, restrictions on liability, crediting and recourse provisions or subroga- Transnational freedom of movement for tion can only unfold limited effects within workers needs to be accompanied by trans- the international context. national social security. The achievement of

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With these aspects in mind, the author ex- however, have a long tradition of using pub- amined the two national legal systems with a lic procurements to accomplish objectives view to their international social law orienta- beyond the pure coverage of public sector tion. She was able to establish the necessary needs. Thus, public procurers often specify foundations for this project in the course of social award criteria which, for example, a research stay at the University of Sydney require tendering undertakings to employ and in collaboration with the Centre of Em- long-term unemployed persons, trainees and ployment and Labour Relations Law in Mel- women or to pay collectively agreed wages at bourne. These findings were applied to the the location of service provision. Still fairly problem of coordination by way of a juridical widespread, moreover, is the ongoing pro- comparison. To the extent that shortcomings tectionist tendency of the public sector to were revealed, the study sought to elaborate favour the home economy when awarding concrete propositions for their solution. To public contracts. that end, special attention was devoted to the possibilities for framing an inter-state agree- Against this conflict-laden background, the ment law and to existing accident insurance thesis examines whether and to what extent agreements. Included in the comparison at Community law permits public procurers to this level were the multilateral EC coordi- bind the award of public contracts to the ful- nation rules as model provisions on specific filment of social criteria. The study begins by freedom of movement issues. To warrant the illuminating the public procurement legisla- highest possible degree of up-to-dateness, tion valid until 31 December 2006 as well reference was made to the new coordina- as the pertinent case law of the ECJ, nota- tion Regulation (EC) No 883/2004 and its bly its interpretation of the term "the most Implementing Regulation, thereby pointing economically advantageous tender", which out the relevant changes vis-à-vis Regulation is common to all EC Directives on public (EEC) No 1408/71. procurement. The next step analyses the argument whereby the consideration of social Beyond this specific subject matter, the dis- award criteria is deemed to violate the pro- sertation has developed generally valid and hibition of state aid under Article 87(1) of systematic aspects central to the coordina- the TEC. Here, the aim is not only to refute tion of accident insurance law. The introduc- this argument but, beyond that, to deduce tory chapter on methodology describes the arguments in favour of the admissibility of foundations of the comparative law analysis social award criteria under Community law based on the systematisation of regulatory by comparing EC state aid and public pro- problems and principles inherent in inter- curement legislation. The core objective of national accident insurance law. The actual the thesis is therefore to compare these two investigation was conducted by screening di- highly dynamic fields of EC legislation, first, verse individual cases in order to cover all the by taking a general look at their common fea- essential constellations and, in this way, to re- tures and, second, by elaborating concrete veal their problematic aspects, enhance their parallels between "compensation payments clarity and ensure the comparability of solu- for the provision of services of general inter- tions found in the different legal systems. est" and social award criteria. Monika Goller In addition, the application of social award criteria is related to the judgments of the 4.2. The Admissibility of Social Award ECJ regarding affirmative action measures Criteria in the Light of EC Law on the basis of Article 141 of the TEC and its derived secondary legislation. The Court Public procurement law regulates the con- has recognised such measures as being additions under which the state is allowed to missible for the realisation of equal opportu- purchase goods and services from private nities. Accordingly, similarities in regulatory undertakings. The primary function of this technique and mode of operation between law is to meet the requirements of the pub- these two fields are highlighted. The find- lic sector in fulfilling its tasks in accordance ings are reinforced by insights gained from with the principle of "best value for public the use of the cross-sectional instrument of money". Numerous EU member states, mainstreaming which the Community legis-

98 III. PROMOTION OF JUNIOR RESEARCHERS lator has applied as an efficient method for possibilities for taking action. An expedient achieving social policy goals. Proceeding from approach, beyond that of legal doctrine, is there, the overall issue of considering social therefore seen in assessing the practical ex- aspects for the award of public contracts perience gained from the model project. Ac- is subjected to a detailed review of propor- cordingly, the thesis is not only devoted to a tionality that critically assesses all previous jurisprudential analysis, but also scrutinises objections to the use of social award crite- practice-based model cases. ria. Of particular interest here is the award criterion that requires compliance with col- Internal court mediation involves alternative lectively agreed wages, this aspect being of dispute settlement procedures embedded exceptional relevance to practice and at the within a jurisdiction. The study thus also same time highly contested. The public pro- explores how mediation can be incorporated curement regime under EC secondary law as into court proceedings. The main focus is well as the case law of the ECJ on minimum on options for the in-court mediation de lege wages is thereby appraised in terms of the lata. If required, legal policy aspects are also freedom to provide services. illuminated, as are necessary extensions and modifications of framework provisions de By distilling all of these results, the investiga- lege ferenda. tion arrives at specific requirements for the Nikola Friedrich admissibility of social award criteria in terms of both primary and secondary EC legislation. The obtained findings are subsequently 4.4. Free Movement of Physicians within taken to review whether the manner in the European Union which social criteria have been incorporated into the new Public Procurement Directives, The opening of health care markets and in force since 1 January 2007, comply with the current move towards greater "liber- these requirements. alisation" has heightened the importance of Ariane Wiedmann physicians' professional mobility across the European Union. Despite extensive discussion, it still remains questionable on what 4.3. Mediation in Bavarian Social scale such mobility can or may be used in Jurisdiction the first place. This is because the freedom of accessing and exercising a profession of- The dissertation is embedded in the two-year ten conflicts with common welfare interests. model project "Mediation in Social Jurisdic- Correspondingly, Community measures for tion" (see II.2.6.). The main focus is on re- the approximation of laws may conflict with searching the legal framework governing in- national regulations. The dissertation external judicial mediation in Bavarian social amines potential limits to the claiming and courts. extension of the Community right to free movement on the part of physicians with a In the field of public law, mediation proce- view to the conflicting priorities of European dures have so far mainly been conducted in integration and individual member state sov- connection with environmental and planning ereignty. The central aim of the study is to law. By contrast, the subject matter of pro- inspect the major obstacles to the free move- ceedings mediated within the scope of the ment of physicians in terms of access to and above model project pertains to the classic exercise of the medical profession in light of forms of administrative action. This raises a the freedom of establishment and the free- series of questions concerning the regulatory dom to render services. framework of mediation in this area of public law. These issues must be explored with a Based on the intrinsic features of the medical view to constitutional and administrative law profession, the status of physicians within so- requirements, including social law. Media- ciety is elaborated. This is supplemented by tion presupposes the negotiating authority of reflections on the position of physicians in a the competent administration. This makes it National Health Service arrangement, on the necessary to enquire about the leeway avail- one hand, and a social insurance system, on able to administrative authorities and their the other. Subsequently, the competences of

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both the EU and its member states for tak- 5. Doctorates ing health care action on behalf of the public interest are discussed. The applicability of Supervision: a graded proportionality test model to state Ulrich BECKER interventions in the free movement of physicians is examined and confirmed. By illus- 2006: Ariane WIEDMANN: "Die Zulässig- trating the overall setting for the regulation keit sozialer Vergabekriterien im Lichte des of free movement, the right to access and Gemeinschaftsrechts", Ludwig-Maximilians- exercise the medical profession is subjected Universität Munich. to a detailed Community law appraisal, including the individual kinds of intervention 2006: Monika GOLLER: "Arbeitsunfall- und in the fundamental freedoms. Berufskrankheitenrisiko bei grenzüberschrei- tenden Beschäftigungsverhältnissen – Soziale The core problem of investigating limitations Sicherheit und Arbeitgeberhaftung im in- to the free movement of physicians in con- ternationalen Sozialrecht Deutschlands und nection with the creation of a single Europe- Australiens", University of Regensburg. an market lies, inter alia, in the harmonisation of diverging legal provisions. By distinguish- 2007: Claudia MATTHÄUS: "Schadens- ing between market access regulations and minderungspflichten im Haftpflicht- und such rules that solely impede the exercise of Sozialrecht Deutschlands, Österreichs und a profession, and by taking account of the der Schweiz", Ludwig-Maximilians-Univer- differing justification requirements, it is pos- sität Munich. sible to strike an adequate balance between the extension of free movement (of persons) envisaged by Community law, on the one hand, and member state regulations of the 6. Habilitation medical profession, on the other. The analogous application of the so-called Keck formu- Supervisor: la shows that regulations governing profes- Ulrich BECKER sional modalities are prohibited only if they are overtly or covertly discriminatory, unless 2006: Alexander GRASER: "Gemeinschaf- justification grounds are provided. Con- ten ohne Grenzen? Zur Dekonzentration der versely, pure market access regulations or rechtlichen Zugehörigkeit zu politischen Ge- professional rules that obstruct such access meinschaften?", Ludwig-Maximilians-Uni- must be appraised in light of the prohibition versität Munich. of professional restrictions and can only be justified by compelling reasons of general interest. In the realm of subjective access to a profession (recognition of professional qualifications), the coordination and gradual harmonisation of professional specifications for physicians is gaining momentum. Where obstacles to the cross-border mobility of physicians are related to the distribution and administration of government resources in the health care sector, these obstacles will nevertheless continue to be erected in the field of objective access to the profession. More transparency and reinforced cooperation between member states are expected here. Dimitris Kremalis

100 IV. Events Organised by the Institute REPORT 2006-2007

1. Conferences and Workshops

18/19 January 2006: 17 February 2006: Workshop: "Access to Social Security Workshop: "Reform der niederländi- for Non-Citizens and Informal Sector schen Krankenversicherung" (Reform of Workers", Max Planck Institute for Foreign the Netherlands Health Insurance System), and International Social Law and Centre for Max Planck Institute for Foreign and Inter- International and Comparative Labour and national Social Law, Munich. Social Security Law (CICLASS), University Ulrich Becker: Welcome and overview of Johannesburg, South Africa. of project Marius Olivier, Ulrich Becker: Christina Walser: The Netherlands Welcome and overview of project health insurance system from a German Ockert Dupper: Institutional perspective framework, legal instruments and legal Geert Jan Hamilton: Funding techniques relating to the promotion issues under the Netherlands health of access to social security for non- insurance reform citizens: An international perspective Gert Jan Velders: More flexible Bernd Schulte: Institutional contracting in the Netherlands health framework, legal instruments and legal insurance system techniques relating to the promotion Bob Boelema: Supervision and the of access to social security for non- health insurance reform citizens: A German perspective Hans Maarse: Competitive elements Daleen Millard: Co-ordination in the Netherlands reform of health methods and legal instruments for insurance. promoting access to social security for non-citizens: A South African 9/10 March 2006: perspective Research colloquium: "Familienpolitik Alexander Graser: Taking inclusion in der alternden Gesellschaft. Ein seriously: An outside perspective on the deutsch-japanischer Vergleich" Khosa decision of the Constitutional (Family Policy in the Ageing Society. A Court of South Africa German-Japanese Comparison), Tsukuba Nicola Smit: Institutional framework, University, Japanese-German Center Berlin legal instruments and legal techniques (djzb), German Institute for Japanese relating to the promotion of access Studies (DIJ), Friedrich-Ebert-Stiftung to social security for informal sector (FES) and Max Planck Institute for Foreign workers: An international perspective and International Social Law, Tsukuba Edwin Kaseke: Institutional University, Tokyo, Japan. framework, legal instruments and legal I. Introduction and historical techniques relating to the promotion development of access to social security for informal Miyoko Motozawa: Significance of the sector workers: A South(ern) African German-Japanese comparison perspective Toshiko Himeoka: Historical George Mpedi: Promoting access development of the term "family" and to social security for informal sector of familial forms in Germany and Japan workers: A German perspective II. The family as a subject of Mathias Nyenti: Adjudication and government policy enforcement mechanisms and the Masanobu Masuda: The Japanese administrative framework. understanding Wolfgang Meincke: The German understanding – the significance of family policy Discussion: What is the meaning of family? What is the meaning of family policy? Why is there no term for

102 IV. EVENTS ORGANISED BY THE INSTITUTE

"family policy" in Japan? Chair: Harald 11 March 2006: Kleinschmidt Colloquium: "Migration, Beschäftigung III. Demographic background und soziale Sicherheit" (Migration, Makoto Ato: Development of family Employment and Social Security) on the structures in society – demographic occasion of the 60th birthday of Prof. Dr. background Michael Wollenschläger by Hans Hablitzel, Sawako Shirahase: The economic Eckhard Kreßel and Ulrich Becker, significance of the family Würzburg Residenz. Discussion: Need for and objectives of Ulrich Becker: Welcome family policy. Chair: Makoto Arai Hans Hablitzel: Formal address IV. Societal importance Albert Schmid: The German Federal Sumio Hatano, Harald Conrad: Office for Migration and Refugees Welcome (BAMF) one year after the enforcement Miyuki Shimoebisu: The societal of the Immigration Act importance of the family – the family Eckhard Kreßel: Labour market providing social services reforms Bernd Baron von Maydell: Objectives Peter Stiegnitz: Migration of workers and tasks of modern family policy to and from Hungary: A sociological Discussion: The societal importance of research on migration the family and the societal recognition Andrzej Sakson: Migration problems of family care work. Chair: Yoko in Poland Tanaka Albrecht Weber: Aspects of illegal V. Family support migration from the viewpoint of EC law Takahiro Eguchi: The legal situation in Ulrich Becker: Migration and social Japan with special regard to social law security. Eva Maria Hohnerlein: Family support through social benefits – The legal 22/23 June 2006: situation in Germany, notably with 3rd Workshop: "General Principles of So- respect to social law cial Security Law in Europe", Research Discussion: What is still missing? What Unit Europe and Social Security (RUESS) has been ignored? Chair: Nanako of the Katholieke Universiteit Leuven and Tamiya Max Planck Institute for Foreign and Inter- VI. Comparing family policies of national Social Law, Frauenchiemsee. European countries Friso Ross: The legal principle Uta Meier-Gräwe: Changing family "security" realities and the paradigm shift in Ulrich Becker, Matthias Knecht, German family policy Danny Pieters, Benno Quade, Friso Discussion: What lessons can be Ross, Paul Schoukens, Markus learned from the experiences of the Sichert: Discussion on other legal European countries? Chair: Harald principles. Conrad VII. Theses for a modern family policy 30 June 2006: Miyoko Motozawa: Presentation of a trESS seminar: "Die gemeinschafts- draft concept on modern family policy rechtliche Koordinierung der Systeme Discussion: Objectives and tasks of a der sozialen Sicherheit in der Europä- modern family policy designed to meet ischen Union" (The Coordination of the needs of the 21st century. Chair: Social Security Systems under EC Law Miyoko Motozawa in the European Union), EU-funded Bernd Baron von Maydell: Summing trESS network (training and reporting on up and closing statement. European Social Security), Bernd Schulte (National trESS network expert, Germany), German Federal Ministry of Health, Berlin.

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Bernd Schulte: Introduction to the Germany – What lesson can we learn seminar form the German experience? Bernhard Spiegel: The new Regulation Winfried Schmaehl: A new paradigm (EC) No 883/2004, the proposal shift in German pension policy and the for its implementing regulation and impacts the current ECJ case law on EC Ulrich Becker, Bernd Baron von coordination law Maydell, Gerhard Igl, Keimei Rainer Schlegel: EC coordination law Kaizuka, Takeshi Tsuchida, Tetsuo from the point of view of German social Fukawa: Penal discussion: "Health jurisdiction care, long-term care and pensions in Albrecht Otting: The new Regulation Germany and Japan: New forms of (EC) No 883/04 and the proposal for solidarity and competition". an implementing regulation from the point of view of the German Federal 23/24 October 2006: Government 2nd Workshop: "Activating Labour Mar- Matthias Hausschild: The Regulation ket Policies", Institute for Employment from the point of view of the German Research (IAB), Institute for the Study of Pension Fund (GRV) Labour (IZA) and Max Planck Institute for Hans-Holger Bauer, Frank-Peter Foreign and International Social Law, Bonn. Kampmann, Stefanie Klein, Günther Regina Konle-Seidl, Otto Kaufmann, Lorff: The Regulation from the point of Werner Eichhorst: General aims and view of statutory health insurance. research questions of the joint project Regina Konle-Seidl, Otto Kaufmann, 2/3 October 2006: Werner Eichhorst: The joint work so Workshop: "Social Security in Germany far: Experiences and difficulties and Japan", National Institute of Population Dan Finn: Target groups of activation and Social Security Research, Chuo Univer- Giuliano Bonoli: Changes in benefits, sity and Max Planck Institute for Foreign and enabling schemes and benefit International Social Law, Hakone, Japan. conditionality Tetsuo Fukawa, Yasuko Hashimoto, Regina Konle-Seidl: Activation and the Keimei Kaizuka, Kohei Komamura, welfare state logic: Breaking with path Shinya Matsuda, Kotaro Tanaka, dependence Takeshi Tsuchida, Ulrich Becker, Benno Quade: Legal foundations of Reinhard Busse, Gerhard Igl, Matthias activation: Activation and law – the Knecht, Bernd Baron von Maydell, citizen and the state Heinz Rothgang, Winfried Schmähl: Otto Kaufmann: Activation and legal Discussion of the country reports. problems Markus Sichert: Constitutional and 4 October 2006: international legal aspects of activation Symposium: "Health Care, Long-Term in different welfare states Care and Pensions in Germany and Els Sol, Lisbeth Pedersen: Governance: Japan: New Forms of Solidarity and Reorganization of administrative bodies Competition", Institute for Health Bernd Schulte, Harm van Lieshout: Economics and Policy, Chuo University Implementation: Formal and actual and Max Planck Institute for Foreign and procedures and practical experiences, International Social Law, Tokyo, Japan. legal aspects Keimei Kaizuka: Social welfare Christopher O'Leary, Jean-Claude systems – Germany and Japan Barbier: Outcomes of activation: Socio- Ulrich Becker: The future direction economic aspects – General overview of social security and a new form of Friso Ross: Outcomes of activation: solidarity in Japan und Germany Legal aspects – General overview Reinhard Busse: Health insurance Markus Sichert: Outcomes of activa- in Germany: Challenges and current tion: Legal aspects – Specific problems developments Werner Eichhorst: Preliminary con- Heinz Rothgang: Financing, providing clusions – Outline of the concluding and regulating long-term care in chapter.

104 IV. EVENTS ORGANISED BY THE INSTITUTE

1/2 December 2006: Otto Kaufmann: A German perspective XIXth Academic colloquium: "Arzneimittel Nur¸sen Canıklıog˘lu: A Turkish im Europäischen Binnenmarkt" (Phar- perspective maceuticals in the Internal Market), Wis- V. Restructuring social assistance senschaftliche Gesellschaft für Europarecht Hans-Joachim Reinhard: A German and Max Planck Institute for Foreign and perspective International Social Law, Munich. Levent Akın: A Turkish perspective. Jürgen Schwarze, Ulrich Becker: Welcome and introduction 18 December 2006: I. Basic issues Workshop: "State of Research into a Wulf-Henning Roth: Possibilities and Global Social Order and Possibilities limits of a single market for pharma- for its Further Investigation", ceuticals Max Planck Institute for Foreign and Ulf Doepner: Statement on distinguish- International Social Law, Munich. ing between pharmaceutical and food Ulrich Becker: Welcome and products introduction II. Sale of pharmaceuticals Thilo Marauhn, Angelika Nußberger, Elmar Mand: The national sales law Martin Scheinin: State of research to governing the cross-border sale of date pharmaceuticals Thilo Marauhn, Angelika Nußberger, Lutz Tisch: Statement on the role of Martin Scheinin: Possibilities for pharmacies in the supply of drugs in investigating a global social order. the internal market III. Price rules and price regulation 8 January 2007: Markus Sichert: New forms of drug Workshop: "Social Policy Research: supply and discounts for non-national Substantive Perspectives and Potential providers operating within the EU Links to Legal Aspects", Max Planck Thorsten Kingreen: Fixed prices and Institute for Foreign and International drug efficacy assessment Social Law, Munich. Ulrich Vorderwülbecke, Rainer Hess: Ulrich Becker: Welcome and Statements. introduction Isabela Mares: Future directions of 7 – 9 December 2006: research in the study of social policy Seminar: "Die Neustrukturierung der Lutz Leisering: Relating sociological sozialen Sicherheit in Deutschland and legal research on global social und in der Türkei" (Social Security policy Restructuring in Germany and Turkey), Joakim Palme: Possible links between Turkish and German Sections of the socio-legal questions and social policy International Society for Labour and Social research Security Law (ISLSSL) and Max Planck Isabela Mares, Lutz Leisering, Joakim Institute for Foreign and International Palme: Statements on interdisciplinary Social Law, Ankara, Turkey. approaches: Potential links between the I. Reasons for and objectives of legal studies of the institute and social restructuring policy research. Ulrich Becker: A German perspective Ali Guzel: A Turkish perspective 19 January 2007: II. The organization of social security: German-Austrian trESS seminar on the restructuring European coordination of social seucrity Friso Ross: A German perspective legislation "Probleme der grenzüber- Ali Nazim Sözer: A Turkish perspective schreitenden Inanspruchnahme von III. Basic features of restructuring Sozialleistungen (Grenzgänger, Pa- health insurance tienten, Anbieter)" (Problems of the Markus Sichert: A German perspective Cross-Border Use of Social Security Ben- Ali Riza Okur: A Turkish perspective efits (Migrant Workers, Patients, Suppli- IV. Basic features of restructuring ers)), EU-funded trESS network (training pension insurance and reporting on European Social Security),

105 REPORT 2006-2007

Bernd Schulte (National trESS network – with special regard to issues of expert, Germany), Walter J. Pfeil (National decentralization trESS network expert, Austria), Bavarian Markus Sichert: Social security admin- State Ministry of Labour and Social Wel- istrative bodies: Health insurance and fare, Family Affairs and Women, Munich. financing at a glance Markus Sichert: Designing Health 15 March 2007: Insurance Law: Funds and pooling German-Japanese Workshop: "Familien- – central and decentralised structures politik" (Family Policy), Max Planck In- Markus Sichert: Special issues of de- stitute for Foreign and International Social signing Health Insurance Law: Collect- Law Munich, Tsukuba University and Japa- ing contributions, pooling, contracting nese-German Center, Berlin. for services and quality management Miyoko Motozawa, Bernd Baron von Christina Walser: System of statutory Maydell: Introduction Health Insurance Law Toshihiko Hara: Family policy and Christina Walser: System of work demographic development (describing accident insurance. the problem and coming to terms with it?) 19 April 2007: Uta Meier-Gräwe: The 7th German Workshop: "Perspektiven integrierter family report and its significance for a Versorgung im Wettbewerb" (Competi- German-Japanese comparison tion within the scope of integrated care), Eva Maria Hohnerlein: Women's Max Planck Institute for Foreign and Inter- policy and family policy national Social Law, Munich. Yoko Tanaka: Corporate social and Ulrich Becker: Welcome and overview family policy of project Bernd Baron von Maydell: General I. Influences of EC law and healthcare social and family policies. reform Christina Walser: Integrated care in 26 March 2007 – 5 April 2007: Europe – a comparative law overview Expert workshop: "Soziale Sicherheit in Markus Sichert: Community law Indonesien" (Social Security in Indonesia), provisions in the field of integrated care Gesellschaft für Technische Zusammenar- Franz Knieps: Integrated care develop- beit (GTZ), Gesellschaft für Versicherungs- ing towards a new "regular care"? wissenschaft und -gestaltung e.V. (GVG), II. Contractual competition for Max Planck Institute for Foreign and Inter- integrated care national Social Law, Munich. Jutta Kaempfe: Competition for Ulrich Becker: Standards of contracts between health insurance international social security law funds in the field of integrated care Barbara Darimont: System and struc- Karsten Scholz: Competition for ture of health insurance law in China contracts between benefit providers in Peter A. Köhler: Old age pensions. the field of integrated care History and stability of the old age Karl-Heinz Möller: The so-called pension system – basic elements medical care centres (MVZs) and Hans-Joachim Reinhard: integrated care Unemployment insurance Tobias Seiffert: Statement from the Bernd Schulte: General issues in social point of view of a medical care centre insurance Alfried Schinz: Statement from Bernd Schulte: Death benefits the point of view of statutory health Bernd Schulte: Law enforcement insurance physicians. Markus Sichert: The grand legal design: Mapping basic principles and 25 May 2007: general issues of common structures of trESS seminar: "Die gemeinschafts recht- insurance law liche Koordinierung der Systeme der Markus Sichert: Outlines of a law on sozialen Sicherheit in der Europäischen social security administrative bodies Union" (The Coordination of Social Secu- rity Systems under EC Law in the European

106 IV. EVENTS ORGANISED BY THE INSTITUTE

Union), EU-funded trESS network (training Institute and its current research and reporting on European Social Security), projects Bernd Schulte (National trESS network Christina Walser: The reform of the expert, Germany), Marcus Göbel, German Netherlands health insurance system Federal Ministry of Health, Berlin. against the background of the new Ger- Bernhard Spiegel: Outline of the man law on strengthening competition trESS project and trESS network in statutory health insurance. Bernd Schulte: Introduction to the seminar 1 October 2007: Bernhard Spiegel: The European Conference: "Perspektiven der Unfall ver- coordination of social security sicherung in Japan und Deutschland" legislation – the current situation (with (Perspectives of Accident Insurance in special regard to the European Report) Japan and Germany), Max Planck Institute Franz-Peter Kampmann: The for Foreign and International Social Law, implementing regulation of Regulation German Statutory Accident Insurance (EC) No 883/2004: Title III Chapter I: (DGUV), Munich Re, Munich. Health Insurance Ulrich Becker: Welcome and overview Matthias Hauschild: How far has of project Electronic Data Transfer got with I. Insurance coverage respect to the new regulation Kenichiro Nishimura: Accidents to and Ulrike Kraus: Taking into account from work and occupational diseases in child-rearing periods in other Member Japanese statutory accident insurance States according to the new Regulation with special regard to the Karôshi cases Elisabeth Reker: Cross-border medical and the problem of asbestos care from the point of view of German Maximilian Fuchs: Restricting the health insurance scope of insurance coverage in German Günther Lorff: Statement statutory accident insurance with Bernhard Pabst: The right of recourse respect to accidents to and from work within EC coordination law and occupational diseases Rolf Schuler: The coordination of II. Financing European social security legislation in Takashi Muranaka: The duality of the light of German case law. capital funding and pay-as-you-go in the financing system of Japanese statutory 22 June 2007: accident insurance 4th Workshop: "General Principles Ulrich Becker: Financing statutory of Social Security Law in Europe", accident insurance – opportunities and Research Unit Europe and Social Security risks when introducing funding ele- (RUESS) of the Katholieke Universiteit ments Leuven and Max Planck Institute for Héctor Upegui: Pros and cons of the Foreign and International Social Law, different financing forms of the acci- Katholieke Universiteit Leuven, Belgium. dent insurance for workers, observed in selected markets 11 – 13 July 2007: III. Computation of pensions Workshop: "Choice and Competition Thomas Gächter: Computation of in Hospital Health Care", Institute of pensions in the Swiss accident insur- Government and Public Affairs, University ance scheme of Illinois and Max Planck Institute for Andreas Kranig: Reform debate on Foreign and International Social Law, the calculation of pensions in German Frauenchiemsee. statutory accident insurance.

7 September 2007: 4 – 6 October 2007: Alumni Meeting 2007, Max Planck In- Interdisciplinary conference: "Eigenver- stitute for Foreign and International Social antwortung, private und öffentliche Law, Munich. Solidarität – Rollenleitbilder im Fami- Ulrich Becker: Welcome; report on lien- und Sozialrecht im europäischen the most recent developments of the Vergleich" (Self-Responsibility, Private and

107 REPORT 2006-2007

Public Solidarity – A Comparative View of and non-contributory social benefit Gender Role Models in Family Law and schemes Social Law in Europe), German Federal United Kingdom: Ministry of Family Affairs, Senior Citizens, Anne Barlow: Self-responsibility and Women and Youth and Max Planck Institute private solidarity between spouses: for Foreign and International Social Law, Gender role models in British family Centro Italo-Tedesco Villa Vigoni, Loveno di law – notably matrimonial property law Menaggio (Como), Italy. and spousal maintenance after divorce Ulrich Becker, Eva Maria Welskop- Linda Luckhaus: Gender role models Deffaa: Welcome addresses under British social law – self-respon- Trudie Knijn: The change in gender sibility, marriage-related solidarity role models across Europe: Is the adult and public solidarity in contributory worker model on the advance? and non-contributory social benefit I. Theoretical framework schemes Kirsten Scheiwe: Retracing the gender Jacqueline O'Reilly: Independent and role models in family law and social law dependent income security of women – an attempt at reconstruction – empirical evidence Eva Maria Hohnerlein: Gender role France: models and social benefits – issues for Harry Willekens: Self-responsibility comparative research and private solidarity: Gender role Marianne Heimbach-Steins: Concepts models – notably matrimonial property of self-responsibility and gender role law and spousal maintenance after models from a socio-ethical perspective divorce in France, with references to II. Gender role models in German Belgium family and social law: Coherencies and Nicole Kerschen: Gender role models contradictions in French social law: Self-responsibility, Stephan Meder: Self-responsibility marriage-related solidarity and public and solidarity in family law, taking solidarity in contributory and non- spousal maintenance after divorce as an contributory social benefit schemes example Marie-Thérèse Letablier: Independent Anne Sanders: Aspects of marital and dependent income security of property law women – empirical evidence Hans-Joachim Reinhard: Self- Denmark: responsibility, marriage-related Line Olsen-Ring: Self-responsibility solidarity and public solidarity in and private solidarity between spouses: contributory and non-contributory Gender role models in Danish family social benefit schemes: Gender role law – notably matrimonial property law models in German social law and spousal maintenance after divorce Ute Klammer: Independent and Kirsten Ketscher: Gender role dependent income security of women models in Danish social law – empirical evidence – self-responsibility, marriage-related III. A comparison across Europe of solidarity and public solidarity in gender role models in family and social contributory and non-contributory law social benefit schemes Italy: Bent Greve: Independent and Maria Giovanna Cubeddu- dependent income security of women Wiedemann: Self-responsibility and – empirical evidence private solidarity between spouses: IV. Summary and conclusions in a Gender role models in Italian family comparative perspective law – notably matrimonial property law Dieter Martiny: Conclusions from a and spousal maintenance after divorce comparative family law perspective Edoardo Ales: Gender role models Eberhard Eichenhofer: Conclusions under Italian social law: Individual from a comparative social law responsibility, marriage related solidar- perspective ity and public solidarity in contributory

108 IV. EVENTS ORGANISED BY THE INSTITUTE

Panel discussion: Gender role models, Bedingungen des demographischen self-responsibility and solidarity Wandels" (Cultural foundations and hy- – Where are we going in Europe? potheses for diverging policies and legisla- Eberhard Eichenhofer, Jeanne tion on behalf of persons with disabilities Fagnani, Trudie Knijn, Dieter in Europe and Asia under conditions of Martiny, Ingeborg Schwenzer, demographic change), Max Planck Institute Reinhold Thiede, Paola Villa. for Foreign and International Social Law; funded by the Robert Bosch Stiftung, Kardi- 5 October 2007: nal-Wendel-Haus, Munich. Symposium: "Die Reform des World I. Foundations Anti-Doping Code (WADC)" (The Bernd Baron von Maydell: Reform of the World Anti-Doping Code Introduction to the discussion (WADC)), Max Planck Institute for Foreign Peter Pörtner: Cultural foundations and International Social Law, Max Planck Andreas Kruse: Forms of disability in Institute for Comparative and International an ageing society Private Law and Forum on International Miyoko Motozawa: Disability and the Sports Law, Hamburg. family Reinhard Zimmermann: Welcome and Klaus Lachwitz: Policy and legislation introduction on behalf of persons with disabilities Dirk-Reiner Martens: The WADC and between "the state and the market" the previous rulings of the Court of Rainer Pitschas: Persons with Arbitration for Sports (CAS) disabilities and local social policies Ulrich Haas: The reform of the WADC Burkhard Rappl, Alexander Drewes: from a legal perspective Statements on disability policy in Jörg Jaksche: Commentary: The reform Germany of the WADC – the perspective of Werner Tegtmeier: Social policy, athletes notably disability policy, in the German Marion Rodewald: Commentary: The social state since the reunification reform of the WADC – the perspective II. Disability policy and disability law in of athletes South and East Asia Denis Oswald: Commentary: The Ming Cheng Kuo: Disability policy reform of the WADC – the perspective foundations: Asia of the associations Kwang Seok Cheon: Services on behalf Michael Lehner: Commentary: The of persons with disabilities: Asia reform of the WADC – the perspective William Gnanasekaran: India: Policy of sports lawyers and the law relating to the integration Ulrich Becker: Chair of discussion. of persons with disabilities Soh-Yeon Won: Korea: Educational 12 October 2007: policy on behalf of young persons with Presentation of the commemorative disabilities and the development of publication "Alterssicherung in legislation and adjudication Deutschland" (Old Age Social Security Makoto Arai: Japan: Guardianship of in Germany) to Prof. Dr. Franz Ruland older persons with disabilities on the occasion of his 65th birthday, Ding Na: P. R. China: The situation Kardinal-Wendel-Haus, Munich. of gainfully employed persons with Ulrich Becker: Welcome and formal disabilities in the P. R. China address III. Disability policy and disability law Gerhard A. Ritter: The German social in Europe state and the reunification. Bernd Schulte: Disability policy foundations: The European Union 20 – 24 October 2007: Peter Trenk-Hinterberger: Services Workshop: "Kulturwissenschaftliche on behalf of persons with disabilities: Grundlegung und Erklärungshypo- Europe thesen divergenter Politiken, sowie Franz Pennings: Netherlands: Forms of Rechtsetzung für Menschen mit Be- healthcare services and social services hinderung in Europa und Asien unter on behalf of persons with disabilities

109 REPORT 2006-2007

Peter A. Köhler: Sweden: Participation II. Background: Constitutional and and access for everyone, including financial law persons with disabilities Ulrich Becker: Constitutional Jef van Langendonck: Representation background in Germany of persons with disabilities in Belgian Ingo Sarlet: Constitutional background social policy in Brazil Petr Tröster: Czech Republic: The Ricardo Lobo Torres: Financial role of persons with disabilities in civil background in Brazil society III. Organisation of the healthcare Maksat Kachkeev: Russia: The rights system of persons with disabilities in Russia: Markus Sichert: Statutory health The state of affairs with regard to insurance in Germany current developments Rodrigo Brandao: Health system in IV. Further procedure – future Brazil – Organizational and structural prospects aspects Alexander Graser: Concluding report. Carlos Alberto Molinaro: Access to courts and instruments of enforcement 26/27 October 2007: of the right to health Workshop: "Law and Social Security in Daniel Sarmento: Control of Developing Countries", Max Planck In- administration and legislation stitute for Foreign and International Social IV. Experience gained from other Law, Munich. countries Ulrich Becker: Welcome speech Miguel Carbonell: The situation in I. Social security in developing Mexico countries: A theoretical perspective Marius Olivier: The situation in South Keebet von Benda-Beckmann: Law, Africa. development and social security Lutz Leisering: Basic income schemes 4 December 2007: in developing and transitional countries Workshop: "Neueste Entwicklungen II. Collision or harmonisation of formal in der sozialen Sicherheit in Deutsch- and informal social security? land" (Latest Developments in Social Edwin Kaseke: Social security provi- Security in Germany), Max Planck Institute sioning in Southern Africa: Develop- for Foreign and International Social Law, ing a framework for the integration of Renmin University of China, Beijing. informal social security into the formal Barbara Darimont: Deguo de canjiren systems shehui kaozhang (Social security of III. Developing or transforming social persons with disabilities in Germany) security in developing countries Ulrich Becker: Social security in James Midgley: Developing appropriate Germany: Emergence, extension and approaches for developing social reform with special regard to old age welfare in developing countries: A pensions. global perspective Debi Saini: Community-based forms 19 December 2007: of social security: Can the Indian Workshop: "Wettbewerb im Gesund- approach be replicated in other heitswesen" (Competition in the Health developing countries? Care System), Max Planck Institute for For- eign and International Social Law, Munich. 8/9 November 2007: Thorsten Kingreen, Ulrich Becker: International Conference on the Right The legal subject matter to Health, Max Planck Institute for Thomas Gerlinger: Issues and research Foreign and International Social Law and approach illuminated from a social- and Pontifícia Universidade Católica do Rio political-science perspective Grande do Sul, Rio de Janeiro, Brazil. Mathias Kifmann: Competition I. The right to health at international between health insurers from an level economic perspective. Aart Hendriks

110 IV. EVENTS ORGANISED BY THE INSTITUTE

2. Guest Lectures

11 January 2006: 28 February 2007: Dr. Fangfang YANG, Renmin University Qingmei QIAO, Renmin University of of China, Beijing, P. R. China: "Chinese China, Beijing, P. R. China: "Problems and Governmental Responsibility for Pension Trends in Chinese Accident Insurance Pro- Insurance". gram – Learning from Germany".

23 February 2006: 6 March 2007: Surab KWIRKWAIA, Institute of State and Prof. Dr. Akira MORITA, Toyo University, Law of the Georgian Academy of Sciences, Tokyo, Japan: "Überlegungen zur japa- Tbilissi, Georgia: "Möglichkeiten für den nischen Rechtskultur – unter dem Gesichts- Aufbau des Sozialstaats in postkommunis- punkt der 'Amae' als Schlüsselbegriff". tischen Gesellschaften (Allgemeine Über- sicht)". 13 March 2007: Prof. Dr. Thomas POGGE, Columbia 2 May 2006: University, New York, USA: "Stand der For- Corinne PACIFICO, University of Fribourg, sch ung und Möglichkeiten der Erforschung Switzerland: "Koordinierung der Systeme einer Weltsozialordnung. Anerkannt und der sozialen Sicherheit im Freizügigkeitsab- doch verletzt: Die Menschenrechte der kommen CH-EU". Armen".

28 June 2006: 22 March 2007: Dr. Heping CAI, Renmin University of Dr. Martin STEFKO, Charles University China, Beijing, P. R. China: "Ländliche in Prague, Prague, Czech Republic: "Über- Wanderarbeitnehmer in China – Probleme blick über das Tschechische System der und Lösungsansätze". Sozialsicherheit".

30 June 2006: 26 March 2007: Dr. Alpay HEKIMLER, Faculty of Econom- Prof. Jian MI, China University of Politi- ics, Department of Labor Economics and cal Science and Law, Beijing, P. R. China: Industrial Relations, University of Istanbul, "Überblick über das chinesische Rechtssys- Turkey: "Die Sozialversicherungsreform in tem". der Türkei: Grundlagen der Neustruktu- rierung des Sozialversicherungssystems". 27 March 2007: Dr. Nico KRISCH, London School of Eco- 20 July 2006: nomics, UK: "Stand der Forschung und Prof. Dr. Robert C. L. MOFFAT, Levin Möglichkeiten der Erforschung einer Welt- College of Law, University of Florida, USA: sozialordnung". "The Entitlements Blackhole: The Transfor- mation of the West". 26 April 2007: Dr. Winfried SÜß, History Department, 11 October 2006: Ludwig-Maximilians-Universität Munich: Dr. Gerda NEYER / Harald WILKOS- "Der Wohlfahrtsstaat in der Krise der ZEWSKI, Max Planck Institute for Demo- 1970er Jahre. Überlegungen zum deutschen graphic Research, Rostock: "The European Fall und Anmerkungen zum europäischen Population and Policy Laboratory". Vergleich".

13 December 2006: 19 June 2007: Prof. Ockert DUPPER, University of Stel- Prof. Dr. Erwin MURER, Lehrstuhl Ar- lenbosch, South Africa: "Challenging the beits- und Sozialversicherungsrecht (Chair Old Age Pension Eligibility Criteria in of labour and social insurance law), Law South Africa: Some Preliminary Remarks". Faculty, University of Fribourg, Switzerland: "Zur Reform der schweizerischen Invaliden- versicherung".

111 REPORT 2006-2007

19 September 2007: 19 November 2007: Dr. Nurs¸en CANIKLIOG˘ LU, Faculty of Prof. Gongcheng ZHENG, Renmin Law, Marmara University, Istanbul, Turkey: University of China, Beijing, P. R. China: "Die finanziellen Leistungen aus der gesetz- "Zuixinde zhongguo de shehui baozhang lichen Sozialversicherung gemäß dem Ge- lifa de fazhan" (Recent Developments in setz Nr. 5510". the Social Law of the P.R. China).

15 November 2007: 29 November 2007: Prof. Dr. Grega STRBAN, University of Prof. Dr. Ockert DUPPER, University Ljubljana, Slovenia: "Reformen des Sozial- of Stellenbosch, South Africa: "Recent rechts in Slowenien – Arbeitslosenver- Developments in South African Social sicherung, gesetzliche Krankenversicherung, Law". Einführung einer Pflegeversicherung".

112 V. Publications REPORT 2006-2007

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

Studien aus dem Max-Planck-Institut Ulrich BECKER für ausländisches und internationales Sozialrecht (Publication series by — Das "Soziale" und der Wettbewerb the Max Planck Institute for Foreign aus juristischer Sicht. In: Deutsche and International Social Law). Ed.: Rentenversicherung (ed.), Das Soziale in Max-Planck-Institut für ausländisches und der Alterssicherung. Bad Homburg, 2006, internationales Sozialrecht. Baden-Baden, pp. 65-78. 1984 – — Deguo fading yiliao baoxian de fazhan - Vol. 37: Becker, Ulrich; von Maydell, (The development of German statutory Bernd; Nußberger, Angelika (eds.): Die health insurance). In: Shehui baozhang Implementierung internationaler Sozial- yaniju (Social security studies) (2006) 1, standards. Baden-Baden, 2006. pp. 40-53.

- Vol. 38: Wiedmann, Ariane: Die Zuläs- — Der soziale Bundesstaat in der sigkeit sozialer Vergabekriterien im Lichte Europäischen Union. In: Ralf Thomas des Gemeinschaftsrechts. Baden-Baden, Baus / Udo Margedant (eds.), Sozialer 2007. Bundesstaat – ein Spannungsfeld. Sankt Augustin, 2006, pp. 203-222. - Vol. 39: Matsumoto, Katsuaki: Reformen der sozialen Sicherungssysteme in Japan — Der Sozialstaat in der Europäischen und Deutschland angesichts der altern- Union. In: Deutscher Städtetag (ed.), Der den Gesellschaft. Baden-Baden, 2007. Städtetag 59 (2006) 6, pp. 12-16.

- Vol. 40: Goller, Monika: Arbeitsunfall- — Gemeinschaftsrechtliche Einwirkungen und Berufskrankheitenrisiko bei grenz- auf das Vertragsarztrecht. In: Friedrich E. überschreitenden Beschäftigungsverhält- Schnapp / Peter Wigge (eds.), Handbuch nissen. Baden-Baden, 2007. des Vertragsarztrechts. 2nd ed. Munich, 2006, pp. 777-811.

Working Papers. Ed.: Max-Planck-Insti- — Schutz und Implementierung von EU- tut für ausländisches und internationales Sozialstandards. In: Ulrich Becker / Bernd Sozialrecht. Munich, 2005 – von Maydell / Angelika Nußberger (eds.), Die Implementierung internationaler - Vol. 2: Social security systems in Germa- Sozialstandards. Baden-Baden, 2006, pp. ny. Status quo and recent developments. 139-178. Munich, 2007, 177 p. — (ed.): Shehui baozhang yanjiu (Social security studies). Beijing, 2006. Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht — Sozialpolitische Geschichte Deutschlands. (ZIAS) (Journal for foreign and inter- Normative Grundlagen. In: Erwin Carigiet / national labour and social law). Ed.: Ueli Mäder / Michael Opielka / Frank Schulz- Max-Planck-Institut für ausländisches und Nieswandt (eds.), Wohlstand durch Gerech- internationales Sozialrecht and Institut für tigkeit. Zürich, 2006, pp. 59-71. Arbeitsrecht und Arbeitsbeziehungen in der Europäischen Gemeinschaft. Heidelberg, —; Heckmann, Dirk; Kempen, Bernhard; 1987 – Manssen, Gerrit: Klausurenbuch öffentli- ches Recht in Bayern. Verfassungsrecht, Vol. 20. Iss. 1 - 4. 2006, 404 p. Kommunalrecht, Polizei- und Sicherheits- Vol. 21. Iss. 1 - 2. 2007, 223 p. recht, öffentliches Baurecht. Munich, 2006.

114 V. PUBLICATIONS

—; von Maydell, Bernd; Nußberger, — Sozialrecht in der europäischen Integra- Angelika (eds.): Die Implementierung tion – eine Zwischenbilanz. In: ZFSH SGB internationaler Sozialstandards. Baden- 46 (2007) 3, pp. 134-143. Baden, 2006. — Verbandsautonomie und Gemeinschafts- recht im Sport. In: Rainer Pitschas / Arnd — Alterssicherung im internationalen Uhle (eds.), Wege gelebter Verfassung in Vergleich. In: Ulrich Becker / Franz- Recht und Politik. Festschrift für Rupert Xaver Kaufmann / Bernd von Maydell / Scholz zum 70. Geburtstag. Berlin, 2007, Winfried Schmähl / Hans F. Zacher (eds.), pp. 996-1018. Alterssicherung in Deutschland. Festschrift für Franz Ruland zum 65. Geburtstag. — Vorwort. In: Katsuaki Matsumoto, Baden-Baden, 2007, pp. 575-610. Reformen der sozialen Sicherungssysteme in Japan und Deutschland angesichts der — Das Wettbewerbsstärkungsgesetz – eine alternden Gesellschaft. Baden-Baden, 2007, verfassungsrechtliche Bewertung. In: pp. 5-9. Zeit schrift für das gesamte Medizin- und Gesundheitsrecht (ZMGR) (2007) 5-6, pp. —; Busse, Reinhard: Health insurance. In: 101-112. Max-Planck-Institut für ausländisches und internationales Sozialrecht (ed.), Social — Einführung. In: Jürgen Schwarze / Ulrich security systems in Germany. Status quo Becker (eds.), Arzneimittel im Europäischen and recent developments. Munich, 2007, Binnenmarkt. Baden-Baden, 2007, pp. 3-5. pp. 7-76.

— EU-Beihilfenrecht und soziale Dienst- —; Hablitzel, Hans; Kreßel, Eckhard (eds.): leistungen. In: Neue Zeitschrift für Sozial- Migration, Beschäftigung und soziale recht (NZS) 16 (2007) 4, pp. 169-176. Sicherheit. Berlin, 2007.

— Freedom of movement for workers. In: —; Haerendel, Ulrike: Einführung: Dirk Ehlers (ed.), European fundamental Geschlechterbezogene Differenzierung in rights and freedoms. Berlin, 2007, pp. 255- den Altersgrenzen der Rentenversicherungs- 280. systeme. In: Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht — Hartz-IV und was sich dahinter verbirgt (ZIAS) 21 (2007) 2, pp. 105-113. – Ziele, Inhalt und Bewertung des SGB II. In: Theodor Tomandl / Walter Schrammel —; Kaufmann, Franz-Xaver; von Maydell, (eds.), Sicherung von Grundbedürfnissen. Bernd; Schmähl, Winfried; Zacher, Hans Vienna, 2007, pp. 23-61. F. (eds.): Alterssicherung in Deutschland. Festschrift für Franz Ruland zum 65. — Migration und soziale Sicherheit Geburtstag. Baden-Baden, 2007. – die Unionsbürgerschaft im Kontext. In: Armin Hatje / Peter M. Huber (eds.), Schwarze, Jürgen; — (eds.): Arzneimittel im Unionsbürgerschaft und soziale Rechte. europäischen Binnenmarkt. Baden-Baden, Baden-Baden, 2007, pp. 95-111. 2007. (Europarecht: Beiheft; 2007/2).

— Migration und soziale Sicherheit. In: Ulrich Becker / Hans Hablitzel / Eckhard Heping CAI Kreßel (eds.), Migration, Beschäftigung und soziale Sicherheit. Berlin, 2007, pp. 53-71. Ländliche Wanderarbeitnehmer in der Volksrepublik China. In: Zeitschrift für — Solidarity, financing and personal ausländisches und internationales Arbeits- coverage. In: The Japanese journal of social und Sozialrecht (ZIAS) 20 (2006) 4, pp. security policy 6 (2007) 1, pp. 1-30. 297-319.

115 REPORT 2006-2007

Barbara DARIMONT — Indirect social security as a means to address poverty in South Africa. In: Elize — Deguo jiating zai shehuifa zhong de Strydom (ed.), Essential social security law. maose (The role of the family under Ger- 2nd ed. Cape Town, 2006, pp. 190-204. man social law against its cultural background). In: Shehui baozhang yanjiu (Social — Maternity protection. In: Elize Strydom security studies) (2006) 1, pp. 172-181. (ed.), Essential social security law. 2nd ed. Cape Town, 2006, pp. 155-168. —; Cheng, Yanyuan: Reform und Gesetz- gebung der chinesischen Arbeitsunfall- —; MacEwen, Martin; Louw, Andre: Em- ver sicherung. In: Gesellschaft für Ver- ployment equity in the tertiary education sicherungswissenschaft und -gestaltung sector in the Western Cape. In: Interna- (ed.), Soziale Sicherung in China. Berlin, tional journal of discrimination and the law 2006, pp. 93-111. 12 (2006) 8, pp. 191-212.

— Dezentralisierung im chinesischen Viktória FÜLÖP Einheitsstaat? In: Michael Stolleis / Wolfgang Streeck (eds.), Aktuelle Fragen Ungarn: Rückkehr zur einheitlichen Alters- zu politischer und rechtlicher Steuerung im grenze. In: Zeitschrift für ausländisches und Kontext der Globalisierung. Baden-Baden, internationales Arbeits- und Sozialrecht 2007, pp. 57-73. (ZIAS) 21 (2007) 2, pp. 208-212.

— Die Verabschiedung des Arbeitsvertrags- gesetzes vor dem Hintergrund moderner Alexander GRASER Sklavenhaltung in der VR China (The pas- sage of the Labour Contract Law against — Approaching the Social Union. In: Erik the background of modern slave labour in O. Eriksen (ed.), Law, democracy and soli- the PRC). In: China aktuell 36 (2007) 5, darity in a post-national union. Oslo, 2007, pp. 96-114. pp. 259-287.

— V. R. China: Frührente für Frauen — Demoikratie? In: Michael Stolleis / zur Bekämpfung der Arbeitslosigkeit. Wolfgang Streeck (eds.), Aktuelle Fragen In: Zeitschrift für ausländisches und zu politischer und rechtlicher Steuerung im internationales Arbeits- und Sozialrecht Kontext der Globalisierung. Baden-Baden, (ZIAS) 21 (2007) 2, pp. 119-126. 2007, pp. 77-96.

Cheng, Yanyuan; —: Die Debatten über die Entwürfe des Arbeitsvertragsgesetzes. Ulrike HAERENDEL In: Zeitschrift für Chinesisches Recht (ZChinR) 14 (2007) 2, pp. 172-181. — Deutschland: Frauenrenten im Ernährer- modell. In: Zeitschrift für ausländisches Mpedi, Letlhokwa George; —: The und internationales Arbeits- und Sozialrecht dualist approach to social security in (ZIAS) 21 (2007) 2, pp. 127-134. developing countries. In: Journal of Social Development in Africa 22 (2007) 1, pp. — Geschlechterpolitik und Alters siche- 9-33. rung. Frauen in der gesetzlichen Renten- versicherung von den Anfängen bis zur Reform von 1957. In: Deutsche Rentenver- Ockert DUPPER sicherung 62 (2007) 2/3, pp. 99-124.

— Affirmative action in South Africa: — Zwischen Improvisation und Selbstbe- (M)Any lessons for Europe? In: Verfassung hauptung: Münchner Frauen in den ersten und Recht in Übersee (VRÜ) 39 (2006) 2, Nachkriegsjahren. In: Elisabeth Angermair, pp. 138-164. Die Illusion des Regenbogens. Munich, 2007, pp. 10-35.

116 V. PUBLICATIONS

Becker, Ulrich; —: Einführung: Geschlech- — Unterstützung für Familien durch terbezogene Differenzierung in den Alters- Geldleistungen und soziale Dienste. In: grenzen der Rentenversicherungssysteme. Miyoko Motozawa / Bernd von Maydell In: Zeitschrift für ausländisches und inter- (eds.), Kazoku notameno Sogoseisaku nationales Arbeits- und Sozialrecht (ZIAS) (Familienpolitik im Vergleich zwischen 21 (2007) 2, pp. 105-113. Deutschland und Japan). Tokyo, 2007, pp. 129-162.

Alpay HEKIMLER Otto KAUFMANN Sosyal politika boyutunda federal almanya'da esnek çalis¸ma modelleri. — Die französische Krankenversicherung Ankara, 2006. nach der Reform. In: Das Recht der Arbeit (DRdA) 56 (2006) 1, pp. 70-77.

Eva Maria HOHNERLEIN — Die Reform der französischen Kranken- versicherung. Höhere Selbstbeteiligung — Die Gleichstellung von Männern und und neue Organisations-Strukturen sollen Frauen in der betrieblichen Altersver- Defizit beseitigen. In: Soziale Sicherheit 55 sorgung. L'égalité de traitement entre hom- (2006) 1, pp. 28-35. mes et femmes dans les retraites professionnelles d'entreprise. Évolutions en droits — Versuche zur Umgestaltung des Arbeits- allemand et communautaire. In: Sylvie vertrags in Frankreich. In: Zeitschrift für Hennion-Moreau / Otto Kaufmann (eds.), europäisches Sozial- und Arbeitsrecht Les retraites professionnelles d'entreprise (ZESAR) 5 (2006) 5/6, pp. 192-199. en Europe. Droits européen et comparé. Betriebliche Altersversorgung in Europa. Europäisches Recht und Rechtsver glei- — Article 129. Commentaire. In: Vlad chung. Occupational pension schemes in Constantinesco / Yves Gautier / Denys Europe. European law and comparative law. Simon (eds.), Traités d'Amsterdam et de Brussels, 2007, pp. 41-72. Nice. Paris, 2007, pp. 484-486.

— Italien: Rückkehr zu anachronistischen — Frankreich: Altersgrenzen und Nach- Frauenaltersgrenzen? In: Zeitschrift für teilsausgleich in der Altersversicherung. In: ausländisches und internationales Arbeits- Zeitschrift für ausländisches und interna- und Sozialrecht (ZIAS) 21 (2007) 2, pp. tionales Arbeits- und Sozialrecht (ZIAS) 21 143-154. (2007) 2, pp. 135-142.

— Stichwort "Europäische Sozialcharta". — La place des retraites professionnelles In: Deutscher Verein für öffentliche und d'entreprise dans la protection vieillesse. private Fürsorge (ed.), Fachlexikon der The position of occupational pensions sozialen Arbeit. 6th ed. Baden-Baden, 2007, within the old age pension system. In: pp. 291. Silvie Hennion-Moreau / Otto Kaufmann (eds.), Les retraites professionnelles — Stichwort "Europarat". In: Deutscher d'entreprise en Europe. Droits européen Verein für öffentliche und private Fürsorge et comparé. Betriebliche Altersversorgung (ed.), Fachlexikon der sozialen Arbeit. in Europa. Europäisches Recht und 6th ed. Baden-Baden, 2007, pp. 295-297. Rechtsvergleichung. Occupational pension schemes in Europe. European law and — Stichwort "Internationale Vereinigung für comparative law. Bruxelles, 2007, pp. 5-18. Soziale Sicherheit (IVSS)". In: Deutscher Verein für öffentliche und private Fürsorge — La protection sociale dans l'espace (ed.), Fachlexikon der sozialen Arbeit. communautaire. In: Gilbert Vincent (ed.), 6th ed. Baden-Baden, 2007, pp. 505. L'avenir de l'Europe sociale. Paris, 2007, pp. 205-226.

117 REPORT 2006-2007

— Protection sociale d'entreprise. In: JCP, — Die Reform der Alterssicherung in juris-classeur périodique (2007) 49, pp. Schweden. In: Ulrich Becker / Franz- 45-46. Xaver Kaufmann / Bernd von Maydell / Winfried Schmähl / Hans F. Zacher (eds.), — Schwächung des Kündigungsschutzes Alterssicherung in Deutschland. Festschrift oder solide Beschäftigungspolitik in für Franz Ruland zum 65. Geburtstag. Frankreich? In: Das Recht der Arbeit Baden-Baden, 2007, pp. 691-712. (DRdA) 57 (2007) 2, pp. 173-178. — Die Rentenreform 1957 und die — Weakening of dismissal protection or Allgemeine Zusatzrente in Schweden. In: strengthening of employment policy in Deutsche Rentenversicherung 62 (2007) France? In: Industrial Law Journal (Ind 2/3, pp. 82-98. Law J) 36 (2007) 3, pp. 267-286. — Internationale Sozialpolitik. In: Bundes- Hennion-Moreau, Sylvie; — (eds.): Les archiv Deutschland / Bundesministerium retraites professionnelles d'entreprise für Arbeit und Soziales (ed.), Bundesre- en Europe. Droits européen et comparé. publik Deutschland 1957-1966. Baden- Betriebliche Altersversorgung in Europa. Baden, 2007, pp. 821-840. (Geschichte der Europäisches Recht und Rechtsverglei- Sozialpolitik in Deutschland seit 1945/4). chung. Occupational pension schemes in Europe. European law and comparative law. — Kündigungs- und Arbeitslosenversiche- Brussels, 2007. rungsrecht als Teil aktivierender Arbeits- marktpolitik in Schweden. In: Zeitschrift Hennion-Moreau, Sylvie; —: Préface. Vor- für europäisches Sozial- und Arbeitsrecht wort. In: Sylvie Hennion-Moreau / Otto (ZESAR) 6 (2007) 10, pp. 399-409. Kaufmann (eds.), Les retraites professionnelles d'entreprise en Europe. Droits eu- — Schweden: Gleichheit der Altersgrenzen ropéen et comparé. Betriebliche Altersver- – Geschlechterdifferenzierung im Leistungs- sorgung in Europa. Europäisches Recht und recht. In: Zeitschrift für ausländisches und Rechtsvergleichung. Occupational pension internationales Arbeits- und Sozialrecht schemes in Europe. European law and com- (ZIAS) 21 (2007) 2, pp. 176-182. parative law. Brussels, 2007, pp. VII-XI. — Stichwort "Internationale Arbeitsorgani- sation (ILO)". In: Deutscher Verein für Peter A. KÖHLER öffentliche und private Fürsorge (ed.), Fach- lexikon der sozialen Arbeit. 6th ed. Baden- — Arbeitsrecht, Kündigungsrecht und das Baden, 2007, pp. 500. Recht der Arbeitslosenversicherung und -vermittlung in Dänemark. In: Zeitschrift — Stichwort "UNESCO (United Nations für europäisches Sozial- und Arbeitsrecht Educational, Scientific and Cultural (ZESAR) 6 (2007) 2, pp. 67-76. Organization)". In: Deutscher Verein für öffentliche und private Fürsorge (ed.), — Das Zusammenwirken der betrieblichen Fachlexikon der sozialen Arbeit. 6th ed. Altersversorgung und der Alterssicherung – Baden-Baden, 2007, pp. 982-983. das Beispiel Schweden. L'interdépendance des retraites d'entreprise et de l'assurance — Stichwort "UNICEF (United Nations vieillesse – l'example suédois. In: Sylvie Children's Fund)". In: Deutscher Verein Hennion-Moreau / Otto Kaufmann für öffentliche und private Fürsorge (ed.), (eds.), Les retraites professionnelles Fachlexikon der sozialen Arbeit. 6th ed. d'entreprise en Europe. Droits européen Baden-Baden, 2007, pp. 985. et comparé. Betriebliche Altersversorgung in Europa. Europäisches Recht und Rechtsvergleichung. Occupational pension Martin LANDAUER schemes in Europe. European law and comparative law. Brussels, 2007, pp. 257- — Reform der Krankenversicherung in den 282. Niederlanden. Bericht über den Workshop

118 V. PUBLICATIONS

am 17. Februar 2006 am Max-Planck-In- 902-933. (Geschichte der Sozialpolitik in stitut für ausländisches und internationales Deutsch land seit 1945/3). Sozialrecht in München. In: Deutsches Verwaltungsblatt (DVBl) (2006) 14, pp. Becker, Ulrich; —; Nußberger, Angelika 887-889. (eds.): Die Implementierung internationaler Sozialstandards. Baden-Baden, 2006. — Reform der niederländischen Kranken- versicherung. Workshop am Max-Planck-In- —; Borchardt, Katja; Henke, Klaus-Dirk; stitut für ausländisches und internationales Leitner, Rupert; Muffels, Ruud: Enabling Sozialrecht. In: Neue Zeitschrift für Sozial- social Europe. Berlin, 2006. recht (NZS) 14 (2006) 8, pp. 413-415.

— Workshop "Reform der niederländischen — Alterssicherung der Frau. In: Ulrich Krankenversicherung". In: ZFSH SGB 45 Becker / Franz-Xaver Kaufmann / Bernd von (2006) 7, pp. 404-407. Maydell / Winfried Schmähl / Hans F. Zacher (eds.), Alterssicherung in Deutschland. Fest- — Tagung zu den "Perspektiven der Unfall- schrift für Franz Ruland zum 65. Geburtstag. versicherung in Japan und Deutschland". Baden-Baden, 2007, pp. 387-397. In: ZFSH SGB 46 (2007) 12, pp. 737-741. — Familienarbeit und Erwerbsarbeit. In: Bernd von Maydell / Miyoko Motozawa Bernd VON MAYDELL (eds.), Kazoku notameno Sogoseisaku (Fami- lienpolitik im Vergleich zwischen Deutsch- — Die Neuordnung der Sozialhilfe und der land und Japan). Tokyo, 2007, pp. 239-251. Arbeitslosenhilfe im System des Sozialrech- ts der Bundesrepublik Deutschland. In: Vio- — Lehren aus dem Transformationsprozess letta Kmiecik (ed.), Rola prawa pracy i ubez- für die Reform sozialer Sicherungssysteme. pieczen´ społecznych w przeciwdziałaniu In: Rainer Pitschas / Arnd Uhle (eds.), bezrobociu. Gdan´sk, 2006, pp. 49-59. Wege gelebter Verfassung in Recht und Politik. Festschrift für Rupert Scholz zum — Einführung. In: Ulrich Becker / Bernd 70. Geburtstag. Berlin, 2007, pp. 55-68. von Maydell / Angelika Nußberger (eds.), Die Implementierung internationaler Sozial- — Normative issues concerning statutory standards. Baden-Baden, 2006, pp. 11-20. pension insurance in Germany. In: Max- Planck-Institut für ausländisches und — Einführung. In: Gesellschaft für Versiche- internationales Sozialrecht (ed.), Social rungswissenschaft und -gestaltung (ed.), security systems in Germany. Status quo Soziale Sicherung in China. Berlin, 2006, and recent developments. Munich, 2007, pp. 7-11. pp. 123-139.

— Schwerer Verlust für die Deutsch-Japa- — Normative issues of the public pension nische Zusammenarbeit in der Krankenver- in Germany. In: The Japanese journal of sicherung. In: Gesundheits- und Sozialpoli- social security policy 6 (2007) 1, pp. 85-95. tik 60 (2006) 7/8, p. 64. — Reformen des polnischen Systems — Sozialversicherung – ein Modell für das sozialer Sicherheit unter Bedingungen von 21. Jahrhundert? In: Maximilian Wallerath Transformationen, Europäisierung und Glo- (ed.), Fiat iustitia – Recht als Aufgabe der balisierung. In: Gdan´skie studia prawnicze Vernunft. Festschrift für Peter Krause zum (2007) 17, pp. 443-450. 70. Geburtstag. Berlin, 2006, pp. 37-46. — Ziele und Aufgaben einer modernen — Internationale Sozialpolitik. In: Deutsch- Familienpolitik im 21. Jahrhundert. In: land / Bundesministerium für Arbeit und Miyoko Motozawa / Bernd von Maydell Soziales (ed.), Bundesrepublik Deutsch- (eds.), Kazoku notameno Sogoseisaku (Fami- land 1949-1957. Baden-Baden, 2006, pp. lienpolitik im Vergleich zwischen Deutsch- land und Japan). Tokyo, 2007, pp. 285-293.

119 REPORT 2006-2007

Becker, Ulrich; Kaufmann, Franz-Xaver; —; Hans-Joachim REINHARD Schmähl, Winfried; Zacher, Hans F. (eds.): Alterssicherung in Deutschland. Festschrift — Ausländische Versorgungsanwartschaften für Franz Ruland zum 65. Geburtstag. im Versorgungsausgleich. In: Zeitschrift Baden-Baden, 2007. für das gesamte Familienrecht (FamRZ) 54 (2007) 11, pp. 866-868. Motozawa, Miyoko; — (eds.): Kazoku notameno Sogoseisaku (Familienpolitik — Funding social security in Germany. im Vergleich zwischen Deutschland und In: Sacha Calmon Navarro Coêlho (ed.), Japan). Tokyo, 2007. Contribuições para a seguridade social. São Paulo, 2007, pp. 550-565.

David MONTOYA MEDINA — Occupational pension schemes in Ger- many. La fiscalité des dispositifs allemands La reforma "Riester" del seguro de pen- d'entreprise. In: Sylvie Hennion-Moreau / siones alemán y el fomento de la previsión Otto Kaufmann (eds.), Les retraites profes- capitalizada de la vejez. In: Aranzadi social sionnelles d'entreprise en Europe. Droits (2006) 4, pp. 65-77. européen et comparé. Betriebliche Alters- versorgung in Europa. Europäisches Recht und Rechtsvergleichung. Occupational Miyoko MOTOZAWA pension schemes in Europe. European law and comparative law. Brussels, 2007, pp. —; von Maydell, Bernd (eds.): Kazoku nota- 315-332. meno Sogoseisaku (Familienpolitik im Ver- gleich zwischen Deutschland und Japan). — Spanien: Gleiche Altersgrenzen – gleiche Tokyo, 2007. Chancen? In: Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (ZIAS) 21 (2007) 2, pp. 197-201. Letlhokwa George MPEDI Ostertun, Dietrich; Reimer, Ekkehart; — Extending social security and labour law —; Richter, Andreas; Zitzmann, Monika protection to the South African informal (adapters): Wegzugsbesteuerung, sector. In: Recht in Afrika 8 (2006), pp. Wegzugsberatung. Zivilrecht, Steuerfolgen, 43-67. soziale Sicherung. Munich, 2007.

— Taxi sectoral determination. In: Tydskrif Werding, Martin; Hofmann, Herbert; vir die Suid-Afrikaanse reg (Journal of South —: Das Rentenmodell der katholischen African law) (2006) 3, pp. 587-594. Verbände. Munich, 2007.

—; Darimont, Barbara: The dualist Friso ROSS approach to social security in developing countries. In: Journal of Social Develop- — Justiz im Verhör. Kontrolle, Karriere und ment in Africa 22 (2007) 1, pp. 9-33. Kultur während der Diktatur von Primo de Rivera (1923-1930). Frankfurt am Main, 2006. Anna Karina OLECHNA Horstmann, Thomas; —: Private Organi- Polen: Rentenalterspolitik und die Tradition sationsnetzwerke und die transnationale einer vorgezogenen Altersgrenze für Frauen. sociale Frage 1880-1914. Thesen, Befunde, In: Zeitschrift für ausländisches und inter- Forschungsperspektiven. In: Jahrbuch für nationales Arbeits- und Sozialrecht (ZIAS) europäische Verwaltungsgeschichte (JEV) 21 (2007) 2, pp. 165-171. 18 (2006), pp. 353-368.

120 V. PUBLICATIONS

— Das Recht der beruflichen Rehabilita- (ed.), Mut zur sozialen Verantwortung! tion in der Bodenseeregion. Vergleich und Date: 18.12.2006. Berlin, 2006, pp. 101- Bestandsaufnahme in Deutschland, Liech- 112. tenstein, Österreich und in der Schweiz. In: Spektrum. Zeitschrift der Deutschen — Das Sozialrecht in der Rechtsprechung Rentenversicherung Baden-Württemberg 7 des Europäischen Gerichtshofs in den (2007) 3/4, pp. 27-32. Jahren 2004 und 2005. In: Peter Udsching / Christian Rolfs (eds.), Jahrbuch des — Die berufliche Vorsorge im Alterssiche- Sozialrechts. Berlin, 2006, pp. 619-658. rungssystem der Schweiz. Rechtliche Grund lagen und Reformansätze. The Swiss — Der Markt wird europäisch: Freizügig- occupational pension scheme and its impact keit, Wettbewerb, Gemeinnützigkeit. In: on the Swiss old age pension system. In: Arbeiter-Samariter-Bund Deutschland Silvie Hennion-Moreau / Otto Kaufmann (ed.), 7. Bundesfachkongress, 26. und 27. (eds.), Les retraites professionnelles Oktober 2006 in Lübeck. Cologne, 2006, d'entreprise en Europe. Droits européen et pp. 1-9. comparé. Betriebliche Altersversorgung in Europa. Europäisches Recht und Rechtsver- — Der rechtliche Rahmen des Gemein- gleichung. Occupational pension schemes schaftsrechts und soziale Dienstleitungen. in Europe. European law and comparative In: Bundesministerium für Soziale Sicher- law. Bruxelles, 2007, pp. 283-306. heit, Generationen und Konsumenten- schutz (ed.), Tagungsband Konferenz — Schweiz: Geschlechterdifferenzierung, Soziale Dienstleistungen, 20. April 2006, Rentenalter und Hinterlassenenversorgung Wien. Vienna, 2006, pp. 36-42. 1855-2005. In: Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht — Die europäische Rechtsentwicklung (ZIAS) 21 (2007) 2, pp. 183-196. im freien Dienstleistungsverkehr und ihre Auswirkungen auf die Leistungserbringung in der sozialen Sicherheit. In: Thomas Markus SCHÖN Gächter (ed.), Das europäische Koordina- tionsrecht der sozialen Sicherheit und die — Forderndes Fördern. Die Eingliederungs- Schweiz. Zürich, 2006, pp. 249-278. vereinbarung des SGB II im Lichte der Rechtsschutzgarantie des Art. 19 Abs. 4 — Die Europäische Union als sozialpoli- GG. In: Die Sozialgerichtsbarkeit (SGb) 53 tischer Akteur. In: Sabine Kropp / Ricardo (2006) 5, pp. 290-297. Gomèz (eds.), Sozialraum Europa. Münster, 2006, pp. 15-71. — Forderndes Fördern. Die Eingliederungs- vereinbarung des SGB II im Lichte der — Mehr Wachstum und Beschäftigung Rechtsschutzgarantie des Art. 19 Abs. 4 GG. für Deutschland und Europa. In: In: Petr Tröster / Michael Coester (eds.), Friedrich-Ebert-Stiftung / Steuerungskreis Europäisches Arbeits- und Sozialrecht. Europäisches Wirtschafts- und Sozialmodell Sammelband des Gemeinschaftsseminars (ed.), Sozialer Ausgleich in den alten und vom 28. Februar – 02. März 2006 an der neuen Mitgliedsstaaten der Europäischen Juristischen Universität der Karls-Univer- Union. Bonn, 2006, pp. 6-14. sität Prag. Prague, 2006, pp. 204-217. — Rechtliche Rahmenbedingungen. In: Bertelsmann-Stiftung (ed.), Demographie Bernd SCHULTE konkret – Seniorenpolitik in den Kommunen. Gütersloh, 2006, pp. 24-35. — Betreuungsrecht und soziale Grund- sicherung. In: Betreuungsrechtliche Praxis — Soziale Daseinsvorsorge und (BtPrax) 14 (2006) 6, pp. 210-214. Europäisches Gemeinschaftsrecht. In: ZFSH SGB 45 (2006) 12, pp. 719-732. — Das Soziale Europa. In: Deutscher Verein für öffentliche und private Fürsorge

121 REPORT 2006-2007

— The community legal context and der VO (EWG) Nr. 1408/71 zur VO (EG) social services. In: Bundesministerium Nr. 883/2004. Bad Homburg, 2007, pp. für Soziale Sicherheit, Generationen und 9-19. Konsumentenschutz (ed.), Proceedings Conference on social services of general — (adapter): Die Reform des europäischen intererst, 20 April 2006, Vienna. Vienna, koordinierenden Sozialrechts. Von der 2006, pp. 31-36. VO (EWG) Nr. 1408/71 zur VO (EG) Nr. 883/2004. Bad Homburg, 2007. — The impact of social security conventions: Germany. In: Frans Pennings (ed.), — Quo vadis Europäische Verfassung? Between soft and hard law. The impact of In: Sozialer Fortschritt 56 (2007) 5, pp. international social security standards on 121-135. national social security law. The Hague, 2006, pp. 115-137. — Soziale Daseinsvorsorge und Euro- päisches Gemeinschaftsrecht. In: ZFSH Bailer, Klaus; Brandner, Klaus; Döring, SGB 46 (2007) 1, pp. 13-27. Diether; Grund, Constantin; — [et al.]: Sozialpolitik europäisch denken. Euro- — Sozialrecht. In: Dietmar Willoweit (ed.), päische Integration und nationale Sozial- Rechtswissenschaft und Rechtsliteratur im politik. Diskussionspapier. Bonn, 2006. 20. Jahrhundert. Munich, 2007, pp. 647- 679. Pennings, Frans; —: International social security standards. In: Frans Pennings (ed.), — Stichwort "Europäische Gemeinschaften Between soft and hard law. The impact of (EG)". In: Deutscher Verein für öffentliche international social security standards on und private Fürsorge (ed.), Fachlexikon der national social security law. The Hague, sozialen Arbeit. 6th ed. Baden-Baden, 2007, 2006, pp. 1-26. pp. 285-286.

Pennings, Frans; —: Some current points — Stichwort "Europäischer Binnenmarkt". of discussion concerning social security In: Deutscher Verein für öffentliche und conventions. In: Frans Pennings (ed.), private Fürsorge (ed.), Fachlexikon der Between soft and hard law. The impact of sozialen Arbeit. 6th ed. Baden-Baden, 2007, international social security standards on pp. 287-288. national social security law. The Hague, 2006, pp. 43-51. — Stichwort "Europäische Sozialpolitik". In: Deutscher Verein für öffentliche und private Fürsorge (ed.), Fachlexikon der — 50 Jahre Römische Verträge – 50 Jahre sozialen Arbeit. 6th ed. Baden-Baden, 2007, Europäisches Sozialrecht. In: ZFSH SGB pp. 291-293. 46 (2007) 6, pp. 323-330. — Stichwort "Europäische Union (EU)". — Dal lavoratore ospite al concittadino. In: In: Deutscher Verein für öffentliche und Deutsche Rentenversicherung Schwaben private Fürsorge (ed.), Fachlexikon der (ed.), Prisma (2007) Special ed. January sozialen Arbeit. 6th ed. Baden-Baden, 2007, 2007, pp. 38-49. pp. 294-295.

— Das Sozialrecht in der Rechtsprechung — Stichwort "Soziale Sicherheit in der des Europäischen Gerichtshofs im Jahre EG". In: Deutscher Verein für öffentliche 2006. In: Peter Udsching / Christian Rolfs und private Fürsorge (ed.), Fachlexikon der (eds.), Jahrbuch des Sozialrechts. Berlin, sozialen Arbeit. 6th ed. Baden-Baden, 2007, 2007, pp. 445-479. pp. 871-872.

— Die Geschichte der Reform der Verord- — Vereinigtes Königreich: Zurück zu den nung (EWG) Nr. 1408/71. In: Bernd Ursprüngen: Gleiches Rentenalter für Schulte (adapter), Die Reform des euro- Männer und Frauen. In: Zeitschrift für päischen koordinierenden Sozialrechts. Von ausländisches und internationales Arbeits-

122 V. PUBLICATIONS

und Sozialrecht (ZIAS) 21 (2007) 2, pp. — Die Rolle des europäischen Rechts für 213-219. die Zukunft des deutschen Gesundheitswe- sens. In: Die BKK 95 (2007) 9, pp. 396-400. — Vom Gastarbeiter zum Mitbürger. 50 Jahre europäische Sozialrechtskoordinie- — Gemeinschaftsrechtliche Vorgaben für rung. In: Deutsche Rentenversicherung integrierte Versorgung. In: Gesundheits- und Schwaben (ed.), Prisma (2007) Special ed. Sozialpolitik 61 (2007) 11-12, pp. 51-61. January 2007, pp. 38-49. — Neue Versorgungsformen und Rabatt- — Zusammenfassung und Ausblick. In: regelungen für ausländische Leistungser- Observatorium für die Entwicklung der bringer. In: Ulrich Becker / Jürgen Schwarze sozialen Dienste in Europa (ed.), Dokumen- (eds.), Arzneimittel im europäischen tation der Tagung Grenzüberschreitende Binnenmarkt. Baden-Baden, 2007. (Euro- Erbringung von Dienstleistungen im Ge- parecht: Beiheft; 2007/2), pp. 101-144. sundheits- und Sozialbereich. Berlin, 2007, pp. 75-80. — Niederlande: Wegmarken zur Gleich- behandlung von Mann und Frau in der Cantillon, Bea; van Mechelen, Natascha; Alterssicherung – Individualisierung des —: Minimum income policies in old and Rentenanspruchs. In: Zeitschrift für aus- new member states. In: Jens Alber / Tony ländisches und internationales Arbeits- und Fahey / Chiara Saraceno (eds.), Handbook Sozialrecht (ZIAS) 21 (2007) 2, pp. 155-164. of quality of life in the enlarged European Union. London, 2007, pp. 218-234. —; Walser, Christina: The management of chronic diseases in the Netherlands and in Linzbach, Christoph; Lübking, Uwe; Germany. In: European Journal of Social Scholz, Stephanie; — (eds.): Globalisierung Security 9 (2007) 3, pp. 243-275. und europäisches Sozialmodell. Baden- Baden, 2007. Martin STEFKO —; Linzbach, Christoph; Zelderloo, Luk: Soziale Dienstleistungen als Teil der Tschechische Republik: Vorgezogene Alters- Daseinsvorsorge. In: Peter Herrmann (ed.), rente für Frauen und Kinderbonus. In: Defining social services in Europe. Between Zeitschrift für ausländisches und interna- the particular and the general. Baden- tionales Arbeits- und Sozialrecht (ZIAS) 21 Baden, 2007, pp. 251-267. (2007) 2, pp. 202-207.

Markus SICHERT Winfried SÜß

— Abkehr vom Kollektivvertragssystem in — Der bedrängte Wohlfahrtsstaat. der integrierten Versorgung. In: Viertel- Deutsche und europäische Perspektiven jahresschrift für Sozialrecht (2006) 4, pp. auf die Sozialpolitik der 1970er-Jahre. In: 271-299. Archiv für Sozialgeschichte 47 (2007), pp. 95-126. — Constitutional review of social-law reforms in Germany and its impact on — Vom Ausbau in die Krise. Der deutsche legislation. In: Sveuciliste / Pravni Fakultet Sozialstaat in den 1960er- und 1970er- (ed.), Zbornik Pravnog Fakulteta Sveucilista Jahren. In: Martin Sabrow (ed.), Die Krise u Rijeci 27 (2006) 2, pp. 725-759. des Sozialstaats. Leipzig, 2007, pp. 63-88.

— Legal conceptualization of activation within Dutch "employment promotion Quirin VERGHO law". In: Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht — Perspektiven integrierter Versorgung (ZIAS) 20 (2006) 4, pp. 341-383. im Wettbewerb. Bericht über die Tagung am 19.4.2007 am Max-Planck-Institut

123 REPORT 2006-2007

für ausländisches und internationales — Integrierte Versorgung in Europa – ein Sozialrecht in München. In: Deutsches rechtsvergleichender Überblick. In: Ge- Verwaltungsblatt (DVBl) (2007) 16, pp. sundheits- und Sozialpolitik 61 (2007) 11- 1017-1019. 12, pp. 41-49.

— Perspektiven integrierter Versorgung im Sichert, Markus; —: The management of Wettbewerb. Bericht über die Tagung am chronic diseases in the Netherlands and in 19. April 2007 am Max-Planck-Institut für Germany. In: European Journal of Social ausländisches und internationales Sozial- Security 9 (2007) 3, pp. 243-275. recht in München. In: Neue Zeitschrift für Sozialrecht (NZS) 16 (2007) 8, pp. 418- 420. Fangfang YANG

— Portugal: Rente mit 62 für Frauen – nur — Chayi? Chaju? (Ungleichheit? eine Übergangserscheinung. In: Zeitschrift Differenzierung?). In: Zhongguo shehui für ausländisches und internationales baozhang (China social security) (2006) 4, Arbeits- und Sozialrecht (ZIAS) 21 (2007) pp. 31-32. 2, pp. 172-175. — Die Verantwortung des chinesischen Staates für die Rentenversicherung. Christina WALSER In: Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht — Die Reform der Krankenversicherung (ZIAS) 20 (2006) 3, pp. 257-286. in den Niederlanden – ein Modell für Deutschland? In: Zeitschrift für — Laoling shehui zhong, PAYG he FF europäisches Sozial- und Arbeitsrecht shuyou shuqiong (Which kind of pension (ZESAR) 5 (2006) 9, pp. 333-340. plan is better, PAYG or FF). In: Shehui baozhang yanjiu (Social security studies) — Erste Ergebnisse der niederländischen (2006) 2. Reform des Krankenversicherungssystems. Ziel erreicht? In: Die BKK 94 (2006) 8, pp. 394-398. Hans F. ZACHER

— Nach der Gesundheitsreform in den — Das Soziale als Begriff des deutschen Niederlanden. Eine neue Krankenversiche- und des europäischen Rechts. In: Deutsche rung für jeden. In: Soziale Sicherheit 55 Rentenversicherung (ed.), Das Soziale in (2006) 3, pp. 87-92. der Alterssicherung. Bad Homburg, 2006, pp. 11-22.

— Belgien: Flexibles Renteneintrittsalter — Democracy in debate. In: Edmond für Männer und Frauen. In: Zeitschrift für Malinvaud / Mary Ann Glendon (eds.), ausländisches und internationales Arbeits- Conceptualization of the person in social und Sozialrecht (ZIAS) 21 (2007) 2, pp. sciences. Vatican City, 2006, pp. 507-511. 114-118. — Die Dilemmata des Wohlfahrtsstaates. — EuGH-Rechtsprechung im Bereich Die Zukunft des sozialen Netzes in grenzüberschreitender Inanspruchnahme Deutschland. In: Stifterverband für die von Gesundheitsdienstleistungen und ihre Deutsche Wissenschaft (ed.), Stifter und Auswirkung auf Anbieter und Nutzer/Nut- Staat. Essen, 2006, pp. 95-112. zerinnen und die Sozialschutzsysteme. In: Observatorium für die Entwicklung der — Eine Sozialgerichtsbarkeit für die sozialen Dienste in Europa (ed.), Dokumen- Zukunft? In: Zeitschrift für Sozialhilfe und tation der Tagung Grenzüberschreitende Sozialgesetzbuch (ZfSH/SGB) 45 (2006) 2, Erbringung von Dienstleistungen im Ge- pp. 67-75. sundheits- und Sozialbereich. Berlin, 2007, pp. 21-28.

124 V. PUBLICATIONS

— Entwicklung einer Dogmatik des — Das Wichtigste: Kinder und ihre Fähig- Sozialrechts. In: Maximilian Wallerath keit zu leben. In: Gerhard Igl / Thomas Klie (ed.), Fiat iustitia – Recht als Aufgabe der (eds.), Das Recht der älteren Menschen. Vernunft. Festschrift für Peter Krause zum Baden-Baden, 2007, pp. 95-130. 70. Geburtstag. Berlin, 2006, pp. 3-36. — Franz Ruland 65 – eine Zwischenbilanz. — Georg Wannagat †. In: Zeitschrift für In: Ulrich Becker / Franz-Xaver Kaufmann ausländisches und internationales Arbeits- / Bernd von Maydell / Winfried Schmähl / und Sozialrecht (ZIAS) 20 (2006) 4, pp. Hans F. Zacher (eds.), Alterssicherung in 398-401. Deutschland. Festschrift für Franz Ruland zum 65. Geburtstag. Baden-Baden, 2007, — Max-Planck-Gesellschaft zur Förderung pp. 715-742. der Wissenschaften. Glückwünsche überbracht von Prof. Dr. Dr. h.c. mult. — Gemeinsame Fragen der Organisation Hans F. Zacher, München. In: Ulrich und des Rechts der sozialen Leistungen. Sieber / Hans-Jörg Albrecht (eds.), In: Bundesarchiv Deutschland / Bundes- Strafrecht und Kriminologie unter einem ministerium für Arbeit und Soziales (ed.), Dach. Kolloquium zum 90. Geburtstag von Bundesrepublik Deutschland 1989-1994. Professor Dr. Dr. h.c. mult. Hans-Heinrich Baden-Baden, 2007, pp. 494-539. (Ge- Jescheck. Berlin, 2006, pp. 20-22. schichte der Sozialpolitik in Deutschland seit 1945/11). — Shehui baoxian yu renquan (Social insurance and human rights). In: Ming- — Globalisierung, Governance und Wissen. Cheng Kuo (ed.), Shehui baoxian zhigaige In: Horst Bürkle / Drago Pintaric (eds.), yu zhangwang (Reform and social Denken im Raum des Heiligen. Festschrift perspectives on social insurance). Taipei, für P. Ansgar Paus OSB. [St. Ottilien], 2006, pp. 1-18. 2007, pp. 415-420.

— Sozialrecht und Rechtsdogmatik. In: — Integrating global entirety by integrating Christoph Engel / Wernhard Möschel diversity. In: Mary Ann Glendon / Juan José (eds.), Recht und spontane Ordnung. Llach / Marcelo Sánchez Sorondo (eds.), Festschrift für Ernst-Joachim Mestmäcker Charity and justice in the relations among zum achtzigsten Geburtstag. Baden-Baden, peoples and nations. Vatican City, 2007, pp. 2006, pp. 531-561. 49-59.

— Sozialstaat und Prosperität. In: Hartmut — Kinderrechte. In: Rainer Pitschas / Arnd Bauer / Detlef Czybulka / Wolfgang Kahl Uhle (eds.), Wege gelebter Verfassung in / Andreas Vosskuhle (eds.), Wirtschaft Recht und Politik. Festschrift für Rupert im offenen Verfassungsstaat. Festschrift Scholz zum 70. Geburtstag. Berlin, 2007, für Reiner Schmidt zum 70. Geburtstag. pp. 413-440. Munich, 2006, pp. 305-329. — Pflichtteil und intergenerationelle — Sozialstaat und Rechtsschutz. In: Solidarität. In: Anne Röthel (ed.), Durchsetzung sozialer Rechtspositionen. Reformfragen des Pflichtteilsrechts. Wiesbaden, 2006, pp. 7-28. Cologne, 2007, pp. 135-150.

— The child's rights in international — Stichwort "Finalprinzip". In: Deutscher charters. Solidarity with children and young Verein für öffentliche und private Fürsorge people in an age of turbulence. In: Mary (ed.), Fachlexikon der sozialen Arbeit. 6th Ann Glendon / Pierpaolo Donati (eds.), ed. Baden-Baden, 2007, pp. 330-331. Vanishing youth? Vatican City, 2006, pp. 445-451. — Stichwort "Internationale Sozialpolitik". In: Deutscher Verein für öffentliche und — Georg Wannagat zu seinem besonderen private Fürsorge (ed.), Fachlexikon der Geburtstag. In: Die Sozialgerichtsbarkeit sozialen Arbeit. 6th ed. Baden-Baden, 2007, (SGb) 53 (2006) 6, pp. 329-333. pp. 502-503.

125 REPORT 2006-2007

— Stichwort "Internationales Sozialrecht". — Stichwort "Versorgungsprinzip". In: Deutscher Verein für öffentliche und In: Deutscher Verein für öffentliche und private Fürsorge (ed.), Fachlexikon der private Fürsorge (ed.), Fachlexikon der sozialen Arbeit. 6th ed. Baden-Baden, 2007, sozialen Arbeit. 6th ed. Baden-Baden, 2007, pp. 504-505. pp. 1013-1014.

— Stichwort "Kausalprinzip". In: Deutscher — Universale Menschenrechte und Verein für öffentliche und private Fürsorge die Wirklichkeit der globalen Welt. (ed.), Fachlexikon der sozialen Arbeit. In: Zeitschrift für ausländisches und 6th ed. Baden-Baden, 2007, p. 537. internationales Arbeits- und Sozialrecht (ZIAS) 21 (2007) 1, pp. 66-90. — Stichwort "Solidarität". In: Deutscher Verein für öffentliche und private Fürsorge Becker, Ulrich; Kaufmann, Franz-Xaver; (ed.), Fachlexikon der sozialen Arbeit. von Maydell, Bernd; Schmähl, Winfried; 6th ed. Baden-Baden, 2007, p. 827. — (eds.): Alterssicherung in Deutschland. Festschrift für Franz Ruland zum 65. — Stichwort "Versicherungsprinzip". Geburtstag. Baden-Baden, 2007. In: Deutscher Verein für öffentliche und private Fürsorge (ed.), Fachlexikon der sozialen Arbeit. 6th ed. Baden-Baden, 2007, p. 1012.

126 VI. Papers and Lectures REPORT 2006-2007

1. Papers

Ulrich BECKER Universität, Frankfurt am Main (12 September 2006). Chair of panel: "Promoting Access to Social Security for Informal Sector Contribution to discussion: "Social Pro- Workers". Seminar: "On Access to Social tection and Social Security Reforms". Security for Non-Citizens and Informal Sec- EU-China Seminar: "The EU and China tor Workers", University of Johannesburg, Experiences of Employment and Social South Africa (19 January 2006). Policies", European Commission, Brussels, Belgium (19 September 2006). Welcome, introduction and closing statement of the workshop: "Reform der "Versicherte Personen der deutschen niederländischen Krankenversicherung", Unfallversicherung". Workshop: "Japa- Max Planck Institute for Foreign and Inter- nisch-deutscher Austausch zu Fragen des national Social Law, Munich Unfallversicherungsrechts", Kyoto Univer- (17 February 2006). sity, Japan (27 September 2006).

Welcome and paper: "Migration und "Organisationsreform in der deutschen soziale Sicherheit". Colloquium on the Unfallversicherung". Workshop: "Japa- occasion of the 60th birthday of Prof. Dr. nisch-Deutscher Austausch zu Fragen des Michael Wollenschläger: "Migration, Be- Unfallversicherungsrechts", Kyoto Univer- schäftigung und soziale Sicherheit", Max sity, Kyoto, Japan (28 September 2006). Planck Institute for Foreign and Interna- tional Social Law, Würzburg Residenz "Health Insurance in Germany". Work- (11 March 2006). shop: "German-Japanese Joint Research on Social Security (GJJRSS)", National Keynote speech: "Die Auswirkungen Institute of Population and Social Security der europäischen Integration auf Research, Chuo University and Max Planck den sozialen Bundesstaat". Workshop: Institute for Foreign and International So- "Sozialer Bundesstaat – ein Spannungsfeld. cial Law, Hakone, Japan (2 October 2006). Sozialpolitik in föderalen Staaten", Konrad- Adenauer-Stiftung, Cadenabbia, Italy Opening Speech: "The Future Direction (25 March 2006). of Social Security and a New Form of Solidarity in Japan und Germany". Commentary on "Age and Legal Symposium: "Health Care, Long-Term Reasoning". MaxNetAging Conference III, Care, and Pensions in Germany and Japan: University of Virginia, Charlottesville, USA New Forms of Solidarity and Competition", (10 May 2006). National Institute of Public Health and Ministry of Health, Labour and Welfare, Questionnaire on "General Principles Chuo University and Max Planck Institute of Social Security Law in Europe for Foreign and International Social Law, (GPSoc)". Workshop: "Challenges for Tokyo, Japan (4 October 2006). the Social Sciences and the Humanities for Europe", Max-Planck-Gesellschaft and "Social Security Reforms in Germany". Katholieke Universiteit Leuven (RUESS), Workshop: "Strukturelle Probleme in der Leuven, Belgium (11 September 2006). medizinischen Versorgung in Deutschland und Japan", National Institute of Population Participation in the talks on "Der and Social Security Research, Tokyo, Japan Anspruch auf Krankenbehandlung (5 October 2006). in der GKV nach der Entscheidung des BVerfG", Institut für Europäische "Der Stand des europäischen Sozial- Gesundheitspolitik und Sozialrecht rechts". Symposium: "Soziales Europa?", (Institute for European health policy and Institute for European Constitutional Sci- social law), Johann Wolfgang Goethe- ence (IEV), FernUniversitaet (supported

128 VI. PAPERS AND LECTURES

distance learning) in Hagen and International Social Law, Munich (20 October 2006). (8 January 2007).

Commentary on "Autonomy in Old Age: Commentary on "Regionale Differen- Voting as a Case Study". MaxNetAging zierung des Alterns". Conference: Conference IV, Max Planck Institute for "Altern, Stadtentwicklung und Umwelt", Foreign and International Social Law, AG LeoTech Alter, Vienna, Austria Carolinska Medico-Chirurgiska Institutet (25 January 2007). and University of Virginia, Naples, Italy (10 November 2006). "Reforms of Old Age Pension Insur- ance – International Perspectives "Grundzüge des EU-Beihilferechts im and Legal Questions". Demographic Bereich der Daseinsvorsorge". colloquium, Max Planck Institute for De- 2nd symposium: "Krankenhaus und Recht", mographic Research, Rostock German Heart Centre, Munich (31 January 2007). (16 November 2006). "Verfassungsrechtliche Bindungen der "Soziale Rechte für Unionsbürger". Krankenkassen bei Kooperationsver- GVG-EU committee meeting of the ein barungen". 10th Marburg Talks on Gesellschaft für Versicherungswissenschaft pharmaceutical law of the Forschungsstelle und -gestaltung e.V. (GVG), Cologne für Pharmarecht (research unit on pharma- (22 November 2006). ceutical law), Philipps-Universität Marburg (15 March 2007). Introduction and chair, XIXth Academic Colloquium: "Arzneimittel im Europäischen "Sozialmodell und Menschenbild in Binnenmarkt", Wissenschaftliche Gesell- der Hartz IV-Gesetzgebung". 14th confer- schaft für Europarecht and Max Planck In- ence of the Academy's commission: "Die stitute for Foreign and International Social Funktion des Gesetzes in Geschichte und Law, Munich (1 December 2006). Gegenwart", Göttingen Academy of Sci- ences (16 March 2007). "Reformen der Sozialleistungssysteme in Deutschland – Gründe und Ent- "Europäische Integration und soziale wicklungsperspektiven". Seminar: "Die Rechte". Series of papers and talks organ- Neustrukturierung der sozialen Sicherheit ised by the Goethe-Institut and the Centre in Deutschland und in der Türkei", Turkish for European Constitutional Law, Athens, and German Section of the International Grece (20 March 2007). Society for Labour Law and Social Security and Max Planck Institute for Foreign and "Das GKV-Wettbewerbsstärkungs- International Social Law, Ankara, Turkey gesetz – Eine verfassungsrechtliche (7 December 2006). Bewertung". Symposium: "Wettbewerbs- stärkungsgesetz – Stärkung des Wettbe- Welcome and introduction. Workshop: werbs?", Deutsche Gesellschaft für Kas- "State of Research into a Global Social senarztrecht e.V. (German association of Order and Possibilities for its Further Inves- statutory health insurance physician law), tigation", Max Planck Institute for Foreign Kaiserin-Friedrich-Haus, Berlin and International Social Law, Munich (18 April 2007). (18 December 2006). Welcome and introduction. Workshop: Welcome and introduction. Workshop: "Perspektiven integrierter Versorgung im "Social Policy Research: Substantive Per- Wettbewerb", Max Planck Institute for For- spectives and Potential Links to Legal eign and International Social Law, Munich Aspects", Max Planck Institute for Foreign (19 April 2007).

129 REPORT 2006-2007

Contribution to discussion, expert panel: tional Social Law, Munich "European Observatory on Health Sys- (1 October 2007). tems and Policies/Research Project". European Commission, Brussels, Belgium "Die Finanzierung der gesetzlichen (27 April 2007). Unfallversicherung – Chancen und Risiken bei Einführung von Kapital- "Hartz IV und was sich dahinter ver- deckungselementen". Conference: "Per- birgt", Institut für Arbeits- und Sozialrecht spektiven der Unfallversicherung in Japan (Institute for labour and social law), Univer- und Deutschland", Max Planck Institute sity of Vienna, Traunkirchen, Austria for Foreign and International Social Law, (11 May 2007). Munich (1 October 2007).

"Entwicklung der Rechtsprechung des Welcome and introduction to the inter- EuGH zum Sozialrecht". Colloquium: disciplinary conference: "Eigenverantwor- "50 Jahre EU – 50 Jahre Rechtsprechung tung, private und öffentliche Solidarität des Europäischen Gerichtshofs zum – Rollenbilder im Familien- und Sozialrecht Arbeits- und Sozialrecht", German Federal im europäischen Vergleich", German Fed- Ministry of Labour and Social Affairs, eral Ministry of Family Affairs, Senior Citi- Berlin (25 June 2007). zens, Women and Youth and Max Planck Institute for Foreign and International So- School lectures on "Hartz IV – sozial cial Law, Centro Italo-Tedesco Villa Vigoni, ungerecht? Spaltung der Gesellschaft Loveno di Menaggio (Como), Italy oder Rettung des Arbeitsmarktes" with- (4 October 2007). in the scope of the General Meeting of the Max-Planck-Gesellschaft held before sec- Chair of the symposium: "Die Reform des ondary school students from Toni-Jensen- World Anti-Doping Code", Max Planck Schule and Thor-Heyerdahl-Gymnasium, Institute for Comparative and International Kiel (28 June 2007). Private Law and Forum on International Sports Law, Hamburg (5 October 2007). Introduction to the workshop: "Choice and Competition in Hospital Health Care", Welcome and formal address at the Institute of Government and Public Affairs, presentation of the commemorative publica- University of Illinois and Max Planck In- tion: "Alterssicherung in Deutschland" to stitute for Foreign and International Social Prof. Dr. Franz Ruland on the occasion of Law, Frauenchiemsee (11 July 2007). his 65th birthday, Kardinal-Wendel-Haus, Munich (12 October 2007). Welcome and report on the most recent developments of the Institute "Der nationale Sozialstaat in der Eu- and its current research projects, ropäischen Union: von Einwirkungen Alumni Meeting 2007, Max Planck und Verschränkungen", History Depart- Institute for Foreign and International ment, Early Modern History and Contem- Social Law, Munich (7 September 2007). porary History, Ludwig-Maximilians-Univer- sität Munich (24 October 2007). Contribution to discussion of: "Zustands- beschreibung und mögliche Entwick- Welcome and commentary. Workshop: lungstendenzen – Finanzierung und "Law and Social Security in Developing rechtliche Aspekte". Conference: Countries", Max Planck Institute for For- "Alter, Bildung, und lebenslanges Lernen", eign and International Social Law, Munich AG LeoTech Alter, Bad Saarow, Berlin (26 October 2007). (27 September 2007). "Constitutional Background in Welcome and overview of project. Germany". International conference on Conference: "Perspektiven der Unfallver- the right to health, Max Planck Institute sicherung in Japan und Deutschland", Max for Foreign and International Social Law Planck Institute for Foreign and Interna- and Pontifícia Universidade Católica do Rio

130 VI. PAPERS AND LECTURES

Grande do Sul, Rio de Janeiro, Brazil (8 November 2007). "System and Structure of Health Insur- ance Law in China". Expert workshop: "The Right to Health in Germany: "Soziale Sicherheit in Indonesien", Gesell- On Social Rights under the German schaft für Technische Zusammenarbeit Constitution", II Congreso Internacional (GTZ), Gesellschaft für Versicherungswis- de Direitos Sociais, Procuradoria Geral senschaft und -gestaltung e.V. (GVG), Max do Municipio do Rio de Janeiro and Planck Institute for Foreign and Interna- Max Planck Institute for Foreign and tional Social Law, Munich (2 April 2007). International Social Law, Rio de Janeiro, Brazil (12 November 2007). "Deguo de canjiren shehui baozhang (Social security of persons with "Europarechtliche Rahmenbedingun- disabilities in Germany) ". Workshop: gen für die Beteiligten im GKV-Wett- "Soziale Sicherheit behinderter Menschen bewerb". Conference: "Vertragsmodelle in Deutschland", Max Planck Institute – Optionen und Strategien für die Markt- for Foreign and International Social Law, beteiligten im System der GKV", Col- Renmin University, Beijing, P. R. China loquium Pharmaceuticum, Frankfurt am (4 December 2007). Main (22 November 2007).

"Social Security in Germany: Emer- Alexander GRASER gence, Extension and Reform with Special Regard to Old Age Pensions". "Taking Inclusion Seriously? – An Out- Workshop: "Neueste Entwicklungen in side Perspective on the Khosa Decision der sozialen Sicherheit in Deutschland", of the Constitutional Court of South Max Planck Institute for Foreign and In- Africa". Seminar: "Access to Social Secu- ternational Social Law, Renmin University, rity for Non-Citizens and Informal Sector Beijing, P. R. China (4 December 2007). Workers", University of Johannesburg, South Africa (18 January 2006). "Zu den juristischen Fragestellungen" (with Thorsten Kingreen). Workshop: "Equality through Law? – Some Struc- "Wettbewerb im Gesundheitswesen", Max tural Remarks on Equality Related Planck Institute for Foreign and Interna- Regulation in the US and Europe". tional Social Law, Munich 3rd conference of MaxNetAging, University (19 December 2007). of Virginia, Charlottesville, USA (10 May 2006).

Barbara DARIMONT "Das Verbot der Alterdiskriminierung – Ein Prinzip von Verfassungsrang?". "Chinesisches und deutsches Sozial- Habilitation paper presented at the Faculty versicherungsrecht – Rezeption und of Law of the Ludwig-Maximilians-Univer- Rechts transfer?", East Asian Seminar, sität Munich (27 July 2006). Freie Universität Berlin (15 February 2006). Concluding report. Workshop: "Kultur- "Soziale Sicherheit in Schwellen- wissenschaftliche Grundlegung und Er- ländern". Scientific Advisory Board meet- klärungshypothesen divergenter Politiken, ing, Max Planck Institute for Foreign and sowie Rechtsetzung für Menschen mit International Social Law, Munich Behinderung in Europa und Asien unter (28 April 2006). Bedingungen des demographischen Wan- dels", Max Planck Institute for Foreign and "Insolvenzfähigkeit von Krankenkas- International Social Law, Kardinal-Wendel- sen – Bedeutung, Folgen und verfas- Haus, Munich (24 October 2007). sungsrechtliche Zulässigkeit". Seminar on legal questions of current social security system reforms, Jugendhaus Josefstal, Josefstal/Schliersee (12 February 2007).

131 REPORT 2006-2007

Maria GRIENBERGER-ZINGERLE "Vorgezogene Altersrenten für Frauen: Geschichte, Funktion, internationales "Activating Labour Market Policy Recht". Conference: "Lebensalter und – Der Landesbericht Deutschland". Recht", Max Planck Institute for European Internal lecture, Max Planck Institute Legal History, Frankfurt am Main for Foreign and International Social Law, (19 October 2007). Munich (31 May 2006).

Eva Maria HOHNERLEIN Ulrike HAERENDEL "Unterstützung der Familie durch "Gesellschaftliche Ordnungsvorstel- Geld leistungen und soziale Dienste lungen im Entstehungsprozess der – Die Situation des deutschen Rechts, gesetzlichen Rentenversicherung in insbesondere des Sozialrechts". Col- Deutschland, 1887-1889". Internal loquium: "Familienpolitik in der alternden lecture, Max Planck Institute for Foreign Gesellschaft. Ein deutsch-japanischer Ver- and International Social Law, Munich gleich", Tsukuba University, Japanese-Ger- (26 July 2006). man Center Berlin (jdzb), German Institute for Japanese Studies (DIJ), Friedrich-Ebert- "Frauen als Rentenversicherte im Stiftung and Max Planck Institute for For- Kaiserreich". Oberseminar (graduate eign and International Social Law, Tsukuba class) Prof. Dr. Michael Stolleis, Max University, Tokyo, Japan (10 March 2006). Planck Institute for European Legal History, Frankfurt am Main (7 November 2006). Statement, panel discussion of the colloquium: "Familienpolitik in der alternden "Geschlechterpolitik und Alters siche- Gesellschaft. Ein deutsch-japanischer Ver- rung: Das Beispiel der vorgezogenen gleich", Tsukuba University, Japanese-Ger- Altersrente für Frauen". Internal lecture, man Center Berlin (jdzb), German Institute Max Planck Institute for Foreign and Inter- for Japanese Studies (DIJ), Friedrich-Ebert- national Social Law, Munich Stiftung and Max Planck Institute for For- (24 January 2007). eign and International Social Law, Tsukuba University, Tokyo, Japan (10 March 2006). "Representations of Social Justice in the Discussions about an Old Age Pen- "Institutionelle und familiäre Be- sion System in Germany". Conference: dingungen der Kindererziehung in "Imagination and Commitment. Represen- Deutsch land", Graduate School of Social tations of the Social Question 1870-1940", Welfare, Hanazono University, Kyoto, Japan University of Groningen, Netherlands (11 (15 March 2006). May 2007). Statement, panel discussion of the "Alter, Gesellschaft und Recht. Zur German-Japanese symposium: "Pflege- Sozialgeschichte der Rentenver siche- ver si cherungsreform und Pflegequalitäts- rung im Kaiserreich 1871-1914". si cherung – Aus deutschen Erfahrungen Oberseminar (graduate class) Prof. Dr. lernen", organised by the Friedrich-Ebert- Hans Günter Hockerts, History Depart- Stiftung and the Conference of the Social ment, Ludwig-Maximilians-Universität Welfare Institutions of the Prefecture of Munich (4 July 2007). Hyogo, Kobe, Japan (18 March 2006).

"Die 'Gleichschaltung' der Münchner "Where are We Going to? Tenden- Stadtverwaltung im Dritten Reich". cies of Change, Transformation and Conference: "Stadt und Nationalsozialis- Challenges". Research conference: "The mus", Austrian Working Committee for Development of Public Childcare and Pre- Urban History, Archive of the City and schools in Europe – Path Dependencies and Province of Vienna, Austria Change – Institutional Perspectives", Uni- (10 October 2007). versity of Hildesheim (21 October 2006).

132 VI. PAPERS AND LECTURES

"Familienpolitik und Frauenpolitik". "Activation and Legal Problems". German-Japanese workshop: "Familienpoli- 2nd workshop: "Activating Labour Market tik", Max Planck Institute for Foreign and Policies", Institute for Employment International Social Law, Tsukuba Univer- Research (IAB), Institute for the Study of sity and Japanese-German Center (jdzb), Labour (IZA) and Max Planck Institute for Berlin (15 March 2007). Foreign and International Social Law, Bonn (23 October 2006). "Eigenverantwortung, private und öffentliche Solidarität – Rollenleit- "Grundzüge der Neustrukturierung bilder im Familien- und Sozialrecht der Rentenversicherung aus deutscher im europäischen Vergleich" (with Edda Sicht". Seminar: "Die Neustrukturierung Blenk-Knocke). Internal lecture, Max der sozialen Sicherheit in Deutschland und Planck Institute for Foreign and Interna- in der Türkei", Turkish and German Section tional Social Law, Munich (16 May 2007). of the International Society for Labour Law and Social Security and Max Planck Insti- tute for Foreign and International Social "Rollenleitbilder und Sozialleistungen Law, Ankara, Turkey (8 December 2006). – Fragestellungen aus vergleichender Sicht". Interdisciplinary conference: "Ei- "Einführung in das Gesamtprojekt genverantwortung, private und öffentliche – (How) does the Activation Work? A Solidarität – Rollenleitbilder im Familien- Comparative Analysis". Internal lecture, und Sozialrecht im europäischen Vergleich", Max Planck Institute for Foreign and Inter- German Federal Ministry of Family Affairs, national Social Law, Munich Senior Citizens, Women and Youth and (21 February 2007). Max Planck Institute for Foreign and Inter- national Social Law, Centro Italo-Tedesco "Objectifs et réalités de la stratégie de Villa Vigoni, Loveno di Menaggio (Como), Lisbonne. La stratégie de Lisbonne, Italy (5 October 2007). contrepoids régulateur ou cheval de Troie de la mondialisation?". 32nd Ipse "Rente weiterhin mit 57? Renten re- Meeting, Ipse (Institut de la Protection form in Italien". Seminar: "Alters si che- Social Européenne), Lisbon, Portugal rung im internationalen Vergleich", Deut- (3 July 2007). sche Rentenversicherung Bund, Erkner near Berlin (26 October 2007). "Reform des sozialen Sicherungssys- tems in Deutschland: Grundsätzliches und Motive". International conference: Otto KAUFMANN "Wirtschaftliche und sozialpolitische Strukturreformen in Deutschland und "Le recours préjudiciel". Workshop: der Türkei", Ege University and Konrad- "L`Europe Sociale", Robert Schuman Uni- Adenauer-Stiftung, Izmir, Turkey versity, Strasbourg, France (17 May 2006). (19 October 2007).

"Le service des soins de santé dans les Etats membres: Choix des assurés". Matthias KNECHT European colloquium: "Dialogue sur une stratégie européenne pour les services", School lecture on "Recht und Rechtspre- Confrontations Europe, Brussels, Belgium chung im Nationalsozialismus" within (8 June 2006). the scope of the General Meeting of the Max-Planck-Gesellschaft; held at Toni- "Modèle social européen ou modèle Jensen-Schule, Kiel (27 June 2007). de société?". Internal conference: "L'engagement des acteurs sociaux", School lecture on "Recht und Rechtspre- Ipse (Institut de la Protection Sociale chung im Nationalsozialismus" within Européenne), Helsinki, Finland and Tallinn, the scope of the General Meeting of the Estonia (paper and conference organization) Max-Planck-Gesellschaft; held before sec- (1 September 2006).

133 REPORT 2006-2007

ondary school students from Thor-Heyer- Bernd BARON VON MAYDELL dahl-Gymnasium, Kiel (28 June 2007). "Die Zukunftsperspektiven für das School lecture on "Der Europäische deutsche Gesundheitssystem", Rotary Verfassungsvertrag – Europa auf dem Club München-Mitte, Munich Weg von der Wirtschafts- zur "Werte"- (3 March 2006). Gemeinschaft" within the scope of the General Meeting of the Max-Planck-Gesell- "Gesellschaftliche Anerkennung von schaft; held before secondary school stu- Familienarbeit – Familienarbeit und dents from Thor-Heyerdahl-Gymnasium, Erwerbsarbeit". Colloquium, Tsukuba Kiel (28 June 2007). University, Japan (9 March 2006).

Peter A. KÖHLER "Gesellschaftliche Anerkennung von Familienarbeit – Familienarbeit "Sozialrechtskodifikation in und Erwerbstätigkeit". Colloquium: Schweden". Internal lecture, Max Planck "Familienpolitik in der alternden Institute for Foreign and International Gesellschaft. Ein deutsch-japanischer Social Law, Munich (11 January 2006). Vergleich", Tsukuba University, Japanese- German Center Berlin (jdzb), German "Old Age Pension. History and Stability Institute for Japanese Studies (DIJ), of Old Age Pension System – Basic Friedrich-Ebert-Stiftung and Max Planck Elements". Expert workshop: "Soziale Institute for Foreign and International Sicherheit in Indonesien", Gesellschaft Social Law, Tsukuba University, Tokyo, für Technische Zusammenarbeit (GTZ), Japan (10 March 2006). Gesellschaft für Versicherungswissenschaft und -gestaltung e.V. (GVG), Max Planck "Ziele und Aufgaben einer modernen Institute for Foreign and International Familienpolitik". Colloquium: "Familien- Social Law, Munich (3 April 2007). politik in der alternden Gesellschaft. Ein deutsch-japanischer Vergleich", Tsukuba "Schweden: Teilhabe und Zugang für University, Japanese-German Center Ber- alle – auch für behinderte Menschen". lin (jdzb), German Institute for Japanese Workshop: "Kulturwissenschaftliche Studies (DIJ), Friedrich-Ebert-Stiftung and Grundlegung und Erklärungshypothesen Max Planck Institute for Foreign and Inter- divergenter Politiken, sowie Rechtsetzung national Social Law, Tsukuba University, für Menschen mit Behinderung in Europa Tokyo, Japan (10 March 2006). und Asien und den Bedingungen des demographischen Wandels", Max Planck "Grundzüge der deutschen Pflegever- Institute for Foreign and International sicherung". German-Japanese symposium: Social Law, Kardinal-Wendel-Haus, Munich "Pflegeversicherungsreform und Pflegequa- (23 October 2007). litätssicherung – Aus deutschen Erfahrun- gen lernen", organised by the Friedrich- Ebert-Stiftung and the Conference of the Claudia MATTHÄUS Social Welfare Institutions of the Prefecture of Hyogo, Kobe, Japan (18 March 2006). "Schadensminderung und Mitwirkung bei eingeschränkter Erwerbsfähigkeit". Statement, panel discussion of the Ger- Internal lecture, Max Planck Institute man-Japanese symposium: "Pflegever si che- for Foreign and International Social Law, rungsreform und Pflegequalitätssicherung Munich (5 April 2006). – Aus deutschen Erfahrungen lernen", organised by the Friedrich-Ebert-Stiftung and the Conference of the Social Welfare Insti- tutions of the Prefecture of Hyogo, Kobe, Japan (18 March 2006).

School lecture on "Reform des Gesund- heitssystems", held before secondary

134 VI. PAPERS AND LECTURES

students from Theodolinden-Gymnasium, "Entwicklung des europäischen und Munich (24 April 2006). internationalen Arbeits- und Sozial- rechts". ECJ colloquium of the German "Die Rahmenbedingungen für grenz- Federal Ministry of Labour and Social überschreitende Gesundheitsleistun- Affairs, Berlin (26 June 2007). gen". German-Polish conference of the Club de Genève, Wroclaw, Poland Introduction to the discussion. Work- (24 May 2006). shop: "Kulturwissenschaftliche Grundle- gung und Erklärungshypothesen diver- "Die heutige Situation der deutschen genter Politiken, sowie Rechtssetzung für Unfallversicherung, insbesondere die Menschen mit Behinderung in Europa und Reformdiskussion". German-Japanese Asien unter den Bedingungen des demo- workshop on accident insurance, Kyoto graphischen Wandels", Max Planck Insti- University, Japan (26 September 2006). tute for Foreign and International Social Law, Munich (22 October 2007). "Normative Issues of the Public Pen- sion System in Germany". Workshop: "Soziale Sicherheit in den Ländern der "Social Security in Germany and Japan", EU". European expert conference: "Die Hakone, Japan (2 October 2006). Zukunft der sozialen Sicherung in Europa", Katholisch-Soziales Institut (KSI), Bad "Entwicklungsprobleme des deutschen Honnef (31 October 2007). Systems sozialer Sicherheit". Confer- ence of the Deutsch-Brasilianische Juristen- "External Review of the European vereinigung e.V. (DBJV) (German-Brazilian Report". Final conference of the trESS lawyers association), Rio de Janeiro, Brazil project – training and reporting on (6 November 2006). European Social Security, Gent, Belgium (8 November 2007). "Zusammenwachsendes Europa – auch im Recht". New Year's Reception, "Die Finanzierung sozialer Leistungen, Augustinum Heidelberg (8 January 2007). insbesondere im Alter". 17th Ibero-Ameri- can Congress on Labour Law and Social "Familienpolitik und allgemeine Sozial- Security, Sao Paulo, Brazil politik". German-Japanese workshop: (21 November 2007). "Familienpolitik", Max Planck Institute for Foreign and International Social Law, "Vorzeitliche Altersrenten im deut- Tsukuba University and Japanese-German schen Rentenversicherungssystem". Center (jdzb), Berlin (15 March 2007). International expert conference of the trade union Solidarnosc, Gdansk, Poland "Die private Krankenversicherung in (12 December 2007). der Diskussion". Rotary Club München- Mitte, Munich (23 March 2007). Benno QUADE "Familienpolitik in Westeuropa, insbesondere Deutschland". Conference: "Die konstitutionelle Verantwortung "Familienpolitik in Estland – Nationale des Staates für das Wohlergehen des Gegebenheiten und europäische Einflüsse", Einzelnen in den USA". Internal lecture, European Academy, Domus Dorpatensis Max Planck Institute for Foreign and Inter- and University of Tartu, Tartu, Estonia national Social Law, Munich (27 April 2007). (8 March 2006).

"Einsatz von nichtärztlichem Personal "Legal foundations of activation: Ac- in den EU-Mitgliedstaaten". Annual tivation and law – the citizen and the meeting of the Arbeitsgemeinschaft für state", 2nd workshop: "Activating Labour ArztRecht, Frankfurt am Main market Policies", Institute for Employment (12 May 2007). Research (IAB), Institute for the Study of Labour (IZA) and Max Planck Institute for

135 REPORT 2006-2007

Foreign and International Social Law, Bonn of Business Administration, Fulda Univer- (23 October 2006). sity of Applied Sciences (27 March 2007).

"Unemployment Insurance". Expert Hans-Joachim REINHARD workshop: "Soziale Sicherheit in Indonesien", Gesellschaft für Technische "El factor de sustanibilidad en los Zusammenarbeit (GTZ), Gesellschaft für pensiones alemanes". Conference: Versicherungswissenschaft und -gestaltung "Pensiones sustanibles para el futuro", e.V. (GVG), Max Planck Institute for Ministerio de Trabajo y Asuntos Sociales, Foreign and International Social Law, Madrid, Spain (25 March 2006). Munich (4 April 2007).

"Aktuelle Entwicklungen im deutschen "Das Rentenmodell der katholischen Betreuungsrecht". Conference: "Betreu- Verbände". Workshop: "Grundsicherung in ungsrecht in der Zukunft", Deutscher Be- Deutschland", Ministry of Social Affairs of treuerverband (German guardians associa- North Rhine-Westphalia, Düsseldorf tion), Erkner near Berlin (23 May 2006). (11 April 2007).

"Social Assistance and Guaranteed "Einführung einer Pflegeversicherung Minimum Income in Germany". Confer- in Spanien". Internal lecture, Max Planck ence: "Formulation of Standards for Urban Institute for Foreign and International Subistence Security in China", Ministry Social Law, Munich (18 July 2007). of Civil Affairs of the People's Republic of China and Gesellschaft für Technische "Eigenverantwortung, eheabhängige Zusammenarbeit (GTZ), Beijing, P. R. und solidarische Absicherung von China (27 June 2006). Frauen – Rollenleitbilder in der Sozial- versicherung und in beitragsunabhän- "Das Rentenmodell der katholischen gigen Leistungssystemen". Interdisci- Verbände". Workshop: "Grundsicherung in plinary conference: "Eigenverantwortung, Deutschland", Ministry of Social Affairs of private und öffentliche Solidarität – Rollen- North Rhine-Westphalia, Düsseldorf leitbilder im Familien- und Sozialrecht im (31 October 2006). europäischen Vergleich", German Federal Ministry of Family Affairs, Senior Citizens, "Sozialhilfe und Organisation der Leis- Women and Youth and Max Planck Institute tungen aus deutscher Sicht". Seminar: for Foreign and International Social Law, "Die Neustrukturierung der sozialen Sicher- Centro Italo-Tedesco Villa Vigoni, Loveno di heit in Deutschland und in der Türkei", Menaggio (Como), Italy (5 October 2007). Turkish and German Section of the Inter- national Society for Labour Law and Social "'Aktivierung' aus rechtlicher Sicht". Security and Max Planck Institute for For- Workshop: "Aktivierung im internationalen eign and International Social Law, Ankara, Vergleich", Institute for Employment Turkey (8 December 2006). Research (IAB) and Max Planck Institute for Foreign and International Social Law, "La Reforma de la Seguridad Social en Munich (15 October 2007). Alemania". Social security expert meeting, Universidad Pablo de Olavide, Seville, "Ausländische Anwartschaften im Carmona, Spain (15 December 2006). Versorgungsausgleich". Development seminar for lawyers specialised in matters of "Leistungen bei Pflege in Spanien". family law, Rechtsanwaltskammer München Internal lecture, Max Planck Institute (22 October 2007). for Foreign and International Social Law, Munich (13 March 2007). "Reform der portugiesischen Sozial- versicherung. Reform der Rentenver- "Social Security in Germany". Work- sicherung in Europa". Workshop Deut- shop: "German Legal System", Department sche Rentenversicherung Bund, Erkner near Berlin (25 October 2007).

136 VI. PAPERS AND LECTURES

Friso ROSS Union". Faculty of Social Work, Health and Nursing, University of Applied Sciences "General Principles of Social Security Ravensburg-Weingarten (15 June 2007). Law in Europe". Scientific Advisory Board meeting, Max Planck Institute for Foreign "Das System der Existenzsicherung im and International Social Law, Munich deutschen Sozialrecht". Faculty of Social (27 April 2006). Work, Health and Nursing, University of Applied Sciences Ravensburg-Weingarten "The Legal Principle Security". 3rd work- (15 June 2007). shop: "General Principles of Social Security Law in Europe", Reseach Unit Europe and "Normative Steering and Competition Social Security (RUESS) of the Katholieke in Hospital Health Care – Challenging Universiteit Leuven and Max Planck In- Regulatory Schemes by Way of Emerg- stitute for Foreign and International Social ing Market Approaches" (with Markus Law, Frauenchiemsee (22 June 2006). Sichert). 5th Annual ESPAnet Conference 2007, Vienna University of Economics and "Outcomes of Activation: Legal Aspects Business Administration (WU Wien), Aus- – General Overview". 2nd workshop: "Ac- tria (21 September 2007). tivating Labour Market Policies", Institute for Employment Research (IAB), Institute "Leistungserbringung im Sozialrecht: for the Study of Labour (IZA) and Max Marktprinzip versus Steuerung durch Planck Institute for Foreign and Interna- die Leistungsträger", Department of tional Social Law, Bonn (24 October 2006). Social Sciences, University of Applied Sci- ences München (22 October 2007). "Die rechtliche Organisation der sozialen Sicherheit in Deutschland". "SGB II und SGB XII als rechtliche Seminar: "Die Neustrukturierung der Konzepte der Mindestsicherung: Ge- sozialen Sicherheit in Deutschland und in meinsamkeiten und Unterschiede", der Türkei", Turkish and German Section Department of Social Sciences, University of the International Society for Labour Law of Applied Sciences München and Social Security and Max Planck Insti- (22 October 2007). tute for Foreign and International Social Law, Ankara, Turkey (7 December 2006). "Arbeitsmarktintegration in der Schweiz: Erfolge der Arbeitslosenver- "Die rechtlichen Systeme beruflicher sicherung und Probleme der Invalidi- Rehabilitation in der Bodenseeregion tätsversicherung". Internal lecture, Max (Österreich, Schweiz, Deutschland Planck Institute for Foreign and Interna- und Liechtenstein)". 2nd international tional Social Law, Munich workshop: "Leistungen zur Teilhabe am (14 November 2007). Arbeitsleben: Berufliche Eingliederung in der Bodenseeregion", EURES Bodensee, "Die rechtlichen Grundlagen der Glo- German Pension Insurance Baden- balisierung im Rehabilitations- und Württemberg and German Trade Union Kurbereich in Deutschland und in der Federation (DGB) Baden-Württemberg, Europäischen Union". 12th Bad Mergent- Isny (26 February 2007). heim Talks: "Reha in Europa: Gefahren und Chancen", Bad Mergentheim "Between Back to Work and Work- (21 November 2007). ing Poor: Labour Market Activation in Switzerland (Sucess, Difficulties "Strukturen und Prinzipien der and Legal Challenges)". 5th International Grund sicherung in Deutschland: Research Conference on Social Security, Vergleichende Betrachtung von SGB International Social Security Association, II und SGB XII". Fachbereich Gesell- Warsaw, Poland (5 March 2007). schaftswissenschaften und Soziale Arbeit (department of social sciences and social "Rechtliche Herausforderungen für die work), University of Applied Sciences sozialen Dienste in der Europäischen Darmstadt (22 November 2007).

137 REPORT 2006-2007

Bernd Schulte – Neue Sozialpolitische Entwicklungen in der Europäischen Union", German Welfare "Institutional Framework, Legal Congress, Düsseldorf (4 May 2006). Instruments and Legal Techniques Relating to the Promotion of Access "Sozialpolitische Fragestellungen auf to Social Security to Non-Citizens: A nationaler und europäischer Ebene". German Perspective". Seminar: "Access Workshop: "Alt und Behindert in Europa to Social Security for Non-Citizens and – Fragen, Ideen und Konzepte aus Wis- Informal Sector Workers", University of senschaft und Praxis", Bundesverband für Johannesburg, South Africa Körper- und Mehrfachbehinderte e. V., (18 January 2006). Berlin (5 May 2006).

"Rechtsfragen zur grenzüberschreiten- "Guardianship Law in Germany and den Altenpflege zwischen Deutschland Europe". Workshop: "Guardianship Law und Österreich". Expert conference: in International Perspective – Germany, "Gibt es noch Grenzen in der Altenpflege Japan and the United Kingdom", Japanische zwischen Bayern und Österreich?", organ- Gesellschaft für Betreuungsrecht (Japanese ised by the Consulate General of the Re- society on adult guardianship), London, public of Austria in Munich, Rosenheim Great Britain (10 May 2006). (26 January 2006). "Fundamental Rights in the Member "Neuere Entwicklungen im Sozialrecht States of the European Union and the – Die Europäische Dimension". Confer- European Union". V. Seminário Internacio- ence 5a: "Neuere Entwicklungen im Sozial- nal de Direitos Fundamentales, Pontifícia recht", German Judicial Academy, Trier Universidade Católica do Rio Grande do (7 February 2006). Sul, Porto Alegre, Brazil (22 May 2006).

"Aktuelle Entwicklungen im deutschen "Age Discrimination in Europe". Inter- Betreuungsrecht". Expert workshop: national conference: "Impact of Ageing. A "Pflegeversicherung und Betreuungsrecht Common Challenge for Europe and Asia", – Problemfelder und Reformansätze in Military Academy, Vienna, Austria Deutschland und Japan?", Japanische (9 June 2006). Gesellschaft für Betreuungsrecht (Japanese society on adult guardianship) and Project overview, seminar: "Die ge- Friedrich-Ebert-Stiftung, Tokyo, Japan mein schaftsrechtliche Koordinierung der (14 March 2006). Sys teme der sozialen Sicherheit in der Euro päischen Union", organised within "Quo vadis Europäische Verfassung? the scope of the EC funded trESS-project, Historischer Rückblick, aktuelle German Federal Ministry of Health, Berlin Konturen aus rechts- und politikwis- (30 June 2006). senschaftlicher Sicht, Perspektiven". Conference: "Die Europäische Verfassung "Wenn die Gerechtigkeit fehlt – soziale – Status quo", Gesellschaft für sozialen Sicherung und soziale Standards". Fortschritt e.V. (Association for Social Special meeting: "Arbeit ist für alle da?! Zur Progress), Berlin (31 March 2006). Zukunft der Erwerbsarbeit", Evangelische Akademie Bad Boll (28 July 2006). "The Community Legal Context and Social Services. Comments". Confer- "Policies towards Dependency in Ger- ence: "Social Services of General Interest", many", 5th International Seminar-Course on Austrian EU Presidency, Austrian Federal Social Policy, 'Gumgersindo de Astaterate'- Ministry of Social Security, Generations and Stiftung, Madrid, Spain Consumer Protection and European Com- (25 September 2006). mission, Vienna, Austria (19 April 2006). Chair, résumé and closing statement, "Das Soziale Europa". Workshop: "Zu expert meeting: "Grenzüberschreitende Er- einer sozialen Verantwortung in Europa bringung von Dienstleistungen im Gesund-

138 VI. PAPERS AND LECTURES

heits- und Sozialbereich", German Federal "Europa ohne soziale Säule? Der Ministry of Family Affairs, Senior Citizens, Europäische Sozialkonsens als neuer Women and Youth and Observatory for the Ansatz? ". Lecture on the European social Development of Social Services in Europe, model, Liaison Office of the Free State of Berlin (26 September 2006). Saxony in Brussels, Belgium (23 January 2007). Speech: "Vom Gastarbeiter zum Mit- bürger, 50 Jahre Europäische Sozial- Keynote speech: "Challenges and rechtskoordinierung", held on the Solutions for Dementia Care". occasion of the anniversary: "50 Jahre Discussion meeting: "Dementia – Who Verbindungsstelle Deutschland – Italien", Takes Care?", European Parliament, German Pension Fund Schwaben, Augsburg Brussels, Belgium (24 January 2007). (5 October 2006). "Sozialpolitische Dienstleistungen und "Implementation of Formal and Infor- Europäisches Gemeinschaftsrecht". mal Procedures and Practical Experi- Social policy colloquium: "Aktivierender ences, Legal Aspects". 2nd workshop: Sozialstaat und Privatisierung" (Christoph "Activating Labour Market Policies", Insti- Sachße/Florian Tennstedt), University of tute for Employment Research (IAB), Insti- Kassel (30 January 2007). tute for the Study of Labour (IZA) and Max Planck Institute for Foreign and Interna- "EU-Zuständigkeiten im Gesund- tional Social Law, Bonn (23 October 2006). heits bereich unter Berücksichtigung der EuGH-Rechtsprechung und der "Wie stellt sich heute Zukunft dar? Auswirkung auf das deutsche Ge- – Der Markt wird europäisch. Gemein- sundheitswesen". Expert conference: nützigkeit, Wettbewerb, Freizügig- "Interessenver tretung bei der Europäischen keit!". 7th Federal congress, The Workers' Union unter besonderer Berücksichtigung Samaritan Federation (ASB), Lübeck der Auswirkungen der EU-Politiken auf das (26 October 2006). deutsche Gesundheitswesen", ZENO and Konrad-Adenauer-Stiftung, Bonn Chair of the workshop: "Soziale Dienst- (6 March 2007). leistungen aus europäischer Sicht, nach Einigung über die Dienstleistungsrichtlinie "Europäisches Sozialrecht". Confer- – Auswirkungen auf soziale Betriebe". 8th ence: "50 Jahre Römische Verträge. Supra- annual fair and congress for the social mar- nationale Institutionen und transnationale ket in Europe, ConSocial, Nuremberg Erfahrungsräume", Berliner Kolleg für Ver- (8 November 2006). gleichende Geschichte Europas, Berlin (17 March 2007). Statement: "Zur Zukunft der Sozial und Gesundheitsdienstleistungen in der Statement: "Sozialdienstleistungen von Europäischen Union". Expert panel: öffentlichem Interesse". Meeting of "Zukunft der Dienstleistungen in der the Expert Group "Legal Advice on Social Europäischen Union", Konrad-Adenauer- Services of General Interest", European Stiftung, Berlin (13 November 2006). Commission, Directorate General for Employment and Social Affairs, Brussels, "Aktuelle Probleme der Auslegung Belgium (20 March 2007). und Anwendung europäischer und internationaler Rechtsinstrumente". "General Issues in Social Insurance", Preparatory conference for the project: "Death Benefits", "Law Enforcement". "Compatibility of the Ukrainian Social Expert workshop: "Soziale Sicherheit in Security Legislation with the European Indonesien", Gesellschaft für Technische and International Standards", Ministry of Zusammenarbeit (GTZ), Gesellschaft für Labour and Social Policy of Ukraine and Versicherungswissenschaft und -gestaltung Council of Europe, Paris, France e.V. (GVG), Max Planck Institute for For- (5 December 2006). eign and International Social Law, Munich (26 March – 5 April 2007).

139 REPORT 2006-2007

Statements on "Vereinbarkeit der ukra- Gesundheit und Lebensmittelsicherheit, inischen Gesetzgebung zur sozialen Akademie für Gesundheit, Ernährung Sicherheit (Gesundheitswesen, Alters- und Verbraucherschutz und Bayerische sicherung, Familienleistungen, Be- Akademie für Arbeit, Sozial- und schäftigung) mit Europäischem und Umweltmedizin, Munich (5 August 2007). Internationalem Recht". Meeting: "Com- patibility of the Ukrainian Social Security "Pflege in Europa und Dienstleis- Legislation with the European and Interna- tungsfreiheit – Eine Zwischenbilanz", tional Standards", Ministry of Labour and Parliamentary talks of the Bruesseler Social Policy of Ukraine and Council of Kreis: "Qualität, Kundensouveränität und Europe, Kiev, Ukraine (24 – 25 April 2007). Finanzierbarkeit sozialer Dienstleistungen – Deutsche Sozialunternehmen fordern Chair of workshop and paper on "Chancen europaweite Regelung für soziale Dienst- grenzüberschreitender sozialer Dienst- leistungen von allgemeinem Interesse", leistungen", 5. Kongress der Sozialwirt- European Parliament, Brussels, Belgium schaft (social economy congress): "Europa (19 September 2007). sozial managen", Bundesarbeitsgemein- schaft der Freien Wohlfahrtspflege e.V. and "Pflege in Europa und Dienstleistungs- Bank für Sozialwirtschaft in collaboration freiheit – Eine Zwischenbilanz". Inter- with the Bundeszentralen der Akademien nal lecture, Max Planck Institute for For- der Freien Wohlfahrtspflege, Magdeburg eign and International Social Law, Munich (26 April 2007). (9 October 2007).

Paper: "EG-rechtliche und EG-poli- "Behindertenpolitische Grundlegung: tische Vorgaben für die Entwicklung Die Europäische Union", Max Planck des deutschen Gesundheitswesens und Institute for Foreign and International So- die ärztliche Tätigkeit", held before the cial Law, Kardinal-Wendel-Haus, Munich regional delegates at the Landesdelegierten- (23 October 2007). versammlung, Hartmannbund – Verband der Ärzte Deutschlands (German physicians "Möglichkeiten der Erweiterung association), Landesverband Bayern, Bad des Sozialversicherungsschutzes auf Griesbach (5 May 2007). selbständig Erwerbstätige aus verfas- sungs- und aus europarechtlicher Per- Project overview, seminar: "Die gemein- spektive". Workshop: "Die Einbeziehung schaftsrechtliche Koordinierung der Selbständiger in die Sozialversicherung Sys teme der sozialen Sicherheit in der aus sozialpolitischer, finanzpolitischer und Europäischen Union", organised within rechtlicher Sicht", Friedrich-Ebert-Stiftung, the scope of the EC funded trESS-project, Berlin (9 November 2007). German Federal Ministry of Health, Berlin (25 May 2007). "Auswirkung von europäischem Wirtschaftsrecht auf das Recht der "Europäische Systeme der sozialen Gesetzlichen Krankenversicherung". Sicherung im Überblick". Conference: Executive conference: "Spannungsfeld "Soziale Sicherung in Europa: Modelle des Wettbewerbs-, Sozial- und Kartellrecht Schutzes im Alter, bei Krankheit und bei Ar- – Auswirkungen für Krankenhäuser, Kran- beitslosigkeit im internationalem Vergleich kenkassen und Industrie", ZENO, Berlin – Europäischer Vergleich der rechtlichen (26 November 2007). Rahmenbedingungen und Handlungsmög- lichkeiten", European Works Council of the "Social Inclusion – Die Europäische automotive supplier ZF Friedrichshafen, Dimension". Workshop: "Social Inclusion", Tretnang (5 July 2007). Hans-Böckler-Stiftung, Berlin (20 December 2007). "Internationaler Vergleich der Absicherung gesundheitlicher Risiken", Grundkurs Sozialmedizin/Rehabilitation Teil II, Bayerisches Landesamt für

140 VI. PAPERS AND LECTURES

Markus SICHERT "Conceptualizing Activation along Legal Lines". Expert workshop: "Disease Management Programmes "Interdisciplinary Workshop on Activation and the Risk Structure Adjustment in Social Security", Hugo Sinzheimer Scheme in Germany". Report to Japanese Instituut, Amsterdam, Netherlands delegation, Max Planck Institute for Foreign (14 November 2006). and International Social Law, Munich (20 March 2006). "Neue Versorgungsformen und Rabatte für ausländische Leistungserbringer", "Choice and Competition in Hospital XIXth Academic Colloquium: "Arzneimittel Health Care". Scientific Advisory Board im Europäischen Binnenmarkt", Wissen- meeting, Max Planck Institute for Foreign schaftliche Gesellschaft für Europarecht and International Social Law, Munich and Max Planck Institute for Foreign and (27 April 2006). International Social Law, Munich (2 December 2006). School lecture on "Der Sozialstaat in der Bewährung" within the scope of "Grundzüge der Neustrukturierung the General Meeting of the Max-Planck- der Krankenversicherung", Turkish Gesellschaft; held at Wöhlerschule, and German Section of the International Frankfurt am Main (11 July 2006). Society for Labour Law and Social Security and Max Planck Institute for Foreign and School lecture on "Die freiheitliche International Social Law, Ankara, Turkey demokratische Grundordnung und das (7 December 2006). NPD-Verbotsverfahren" within the scope of the General Meeting of the Max-Planck- "Das Recht der Aktivierung zur Arbeits- Gesellschaft; held at Dreieichschule, förderung in den Niederlanden". Inter- Langen (11 July 2006). nal lecture, Max Planck Institute for For- eign and International Social Law, Munich School lecture on "Das Parteiverbot in (21 February 2007). der wehrhaften Demokratie" within the scope of the General Meeting of the "The Grand Legal Design: Mapping Max-Planck-Gesellschaft; held at Richarda- Basic Principles and General Issues Huch-Schule, Dreieich (12 July 2006). on Common Structures of Insurance Law". Expert workshop: "Soziale Sicherheit Schulvortrag "Das Sozialstaatsprinzip" in Indonesien", Gesellschaft für Technische within the scope of the General Meeting of Zusammenarbeit (GTZ), Gesellschaft für the Max-Planck-Gesellschaft; held at Main- Versicherungswissenschaft und -gestaltung Taunus-Schule, Hofheim (13 July 2006). e.V. (GVG), Max Planck Institute for For- eign and International Social Law, Munich "Constitutional and International (27 March 2007). Legal Aspects to Activation in Different Welfare States". 2nd workshop: "Activating "Outlines of a Law on Social Security Labour Market Policies", Institute for Administrative Bodies – With Special Employment Research (IAB), Institute for Regard to Issues of Decentralization". the Study of Labour (IZA) and Max Planck Expert workshop: "Soziale Sicherheit in Institute for Foreign and International Indonesien", Gesellschaft für Technische Social Law, Bonn (23 October 2006). Zusammenarbeit (GTZ), Gesellschaft für Versicherungswissenschaft und -gestaltung "Outcomes of Activation: Legal Aspects e.V. (GVG), Max Planck Institute for For- – Specific Problems". 2nd workshop "Ac- eign and International Social Law, Munich tivating Labour Market Policies", Institute (29 March 2007). for Employment Research (IAB), Institute for the Study of Labour (IZA) and Max "Social Security Administrative Bodies: Planck Institute for Foreign and Interna- Health Insurance and Financing at tional Social Law, Bonn (24 October 2006). a Glance". Expert workshop: "Soziale Sicherheit in Indonesien", Gesellschaft

141 REPORT 2006-2007

für Technische Zusammenarbeit (GTZ), "Promoting and Saving Social Security Gesellschaft für Versicherungswissenschaft Standards by Constitutional Control". und -gestaltung e.V. (GVG), Max Planck II Congreso Internacional de Direitos So- Institute for Foreign and International ciais, Procuradoria Geral do Municipio do Social Law, Munich (30 March 2007). Rio de Janeiro and Max Planck Institute for Foreign and International Social Law, Rio "Designing Health Insurance Law: de Janeiro, Brazil (12 November 2007). Funds and Pooling – Central and De- centralised Structures". Expert workshop: "Soziale Sicherheit in Indonesien", Quirin VERGHO Gesellschaft für Technische Zusammenar- beit (GTZ), Gesellschaft für Versicherungs- "Das portugiesische Alterssiche rungswissenschaft und -gestaltung e.V. (GVG), system – Stand der Reformbestrebun- Max Planck Institute for Foreign and Inter- gen". Conference: "Alterssicherung im national Social Law, Munich (4 April 2007). internationalen Vergleich", Deutsche Ren- ten versicherung Bund, Erkner near Berlin "Special Issues of Designing Health In- (25 October 2007). surance Law: Collecting Contributions, Pooling, Contracting for Services and Quality Management". Expert workshop: Christina WALSER "Soziale Sicherheit in Indonesien", Gesell- schaft für Technische Zusammenarbeit "Die niederländische Reform der (GTZ), Gesellschaft für Versicherungswis- Krankenversicherung aus deutscher senschaft und -gestaltung e.V. (GVG), Max Sicht". Workshop: "Reform der nieder- Planck Institute for Foreign and Interna- ländischen Krankenversicherung", Max tional Social Law, Munich (5 April 2007). Planck Institute for Foreign and Interna- tional Social Law, Munich "Gemeinschaftsrechtliche Vorgaben für (17 February 2006). integrierte Versorgung". Workshop: "Per- spektiven integrierter Versorgung im Wett be- "Die Reform der Krankenversicherung werb", Max Planck Institute for Foreign and der Niederlande – ein Modell für International Social Law, Munich Deutschland?". Meeting of the Board of (19 April 2007). Trustees, Max Planck Institute for Foreign and International Social Law, Munich "Normative Steering and Competition (29 April 2006). in Hospital Health Care – Challenging Regulatory Schemes by Way of Emerg- "EuGH-Rechtsprechung im Bereich ing Market Approaches". ESPAnet Con- grenzüberschreitender Inanspruch- ference 2007, Vienna University of Eco- nahme von Gesundheitsdienstleistun- nomics and Business Administration (WU gen und ihre Auswirkung auf Anbieter Wien), Austria (21 September 2007). und Nutzer und Nutzerinnen und die Sozialschutzsysteme". Expert meeting: "Statutory Health Insurance in "Grenzüberschreitende Erbringung von Germany". International Conference on Dienstleistungen im Gesundheits- und the Right to Health, Max Planck Institute Sozialbereich", German Federal Ministry of for Foreign and International Social Law Family Affairs, Senior Citizens, Women and and Pontifícia Universidade Católica do Rio Youth and Observatory for the Development Grande do Sul, Rio de Janeiro, Brazil of Social Services in Europe, Berlin (8 November 2007). (29 September 2006).

"Die Reform der niederländischen Krankenversicherung". Conference: "Koordinierung und Umsetzung von Europarecht in das nationale Sozialrecht der EU-Mitgliedsländer", German Judicial Academy, Trier (15 November 2006).

142 VI. PAPERS AND LECTURES

"System of Statutory Health Insurance ceremony of the "Schader-Preis 2007" for Law" and "System of Work Accident Franz-Xaver Kaufmann, Schader-Stiftung, Insurance". Expert workshop: "Soziale Darmstadt (10 May 2007). Sicherheit in Indonesien", Gesellschaft für Technische Zusammenarbeit (GTZ), Ge- Address: "Carl Friedrich von sellschaft für Versicherungswissenschaft Weizsäcker †". Session of the Human und -gestaltung e.V. (GVG), Max Planck Sciences Section held within the scope of Institute for Foreign and International the General Meeting of the Max-Planck- Social Law, Munich (2 – 3 April 2007). Gesellschaft, Kiel (27 June 2007).

"Integrierte Versorgung in Europa – Ein rechtsvergleichender Überblick". Workshop: "Perspektiven integrierter Ver- sorgung im Wettbewerb", Max Planck In- stitute for Foreign and International Social Law, Munich (19 April 2007).

"Die niederländische Krankenversiche- rungsreform vor dem Hintergrund des GKV-Wettbewerbsstärkungsgesetzes". Alumni meeting 2007, Max Planck Institute for Foreign and International Social Law, Munich (7 September 2007).

"Der Arbeitsunfall im niederländischen Recht". Internal lecture, Max Planck In- stitute for Foreign and International Social Law, Munich (12 December 2007).

Hans F. ZACHER

Commentary: "Rechte von Kindern und Minderjährigen in internationalen Chartas". 12th Plenary Session of the Pon- tifical Academy of Social Sciences, Vatican City (1 May 2006).

"Pflichtteil und intergenerationelle Solidarität". Symposium: "Pflichtteils- recht", Bucerius Law School, Salzau Castle near Hamburg (1 December 2006).

"Der europäische Sozialstaat". Series of papers and talks: "Reden über Europa", organised in collaboration with the Centre for European Constitutional Law, Goethe- Institut Athens, Grece (20 March 2007).

Commentary: "International Society and the Idea of Justice", 13th Plenary Session, Pontifical Academy of Social Sciences, Vatican City (27 April 2007).

Speech: "Franz-Xaver Kaufmann", delivered on the occasion of the awards

143 REPORT 2006-2007

2. Lectures

Ulrich BECKER Guest lectures

Ludwig-Maximilians-Universität 22 May 2006: "Recent Reforms of German Munich Social Insurance Systems", Faculty of Law, Department of Labour Law and Social WS 2005/2006: Lecture on public law: Security Law, University of Ljubljana, "Sozialrecht I" (2 hrs.). Slovenia.

WS 2005/2006: Public law seminar: "An- 4 December 2007: "Social Security and tidiskriminierungsrecht in Deutschland / Constitution – On the Role of Social and Antidiscrimination Law in Germany" (with Civil Rights for Social Protection", Renmin O. Dupper) (2 hrs.). University, Beijing, P. R. China.

WS 2005/2006: Seminar (focal subject 5): 5 December 2007: "Social Security in Ger- "Arbeits- und Sozialrecht in Europa" (with many: Emergence, Extension and Reform M. Coester and P. Tröster) (in collaboration with Special Regard to Old Age Pensions", with the University of Prague). Southwest University of Finance and Eco- nomics, Chengdu, P. R. China. SS 2006: Public law seminar: "Fußball und Recht" (2 hrs.). 7 December 2007: "Social Security in Ger- many: Emergence, Extension and Reform WS 2006/2007: Lecture (focal subject 5): with Special Regard to Old Age Pensions", "Grundlagen des Sozialversicherungsrechts" Zhejiang University, Hangzhou, P. R. China. (2 hrs.).

WS 2006/2007: Seminar on public and so- Carlos L. COTA cial law: "Rechtsfragen aktueller Reformen sozialer Sicherungssysteme" (2 hrs.). WS 2005/2006: "Basics in Legal English I", Faculty of Law, Ludwig-Maximilians- SS 2007: Lecture "Kommunalrecht" Universität Munich (2 hrs.). (2 hrs.). SS 2006: "Basics in Legal English II", SS 2007: Public Law seminar: "Rechtsfra- Faculty of Law, Ludwig-Maximilians- gen der Dopingbekämpfung im Sport" (with Universität Munich (2 hrs.). D. R. Martens) (2 hrs.).

WS 2007/2008: Lecture (focal subject 5): Ockert DUPPER "Grundlagen des Sozialversicherungsrechts" (2 hrs.). WS 2005/2006: Public law seminar: "Antidiskriminierungsrecht in Deutschland WS 2007/2008: Public law seminar: / Antidiscrimination Law in Germany" (with "Sozialrecht und Antidiskriminierungsrecht" U. Becker) (2 hrs.). (2 hrs.).

Katholieke Universiteit Leuven, Otto KAUFMANN Belgium Robert Schuman University, Strasbourg, 2005/2006, 2006/2007: Course "EC France Social Security (except coordination)" held under the "European Master's in Social 2006/2007: Lectures on European social Security" programme. law within the scope of the "Master 2 Droit Social", Faculté de Droit.

144 VI. PAPERS AND LECTURES

2006/2007: Seminars on German, French Européenne (European social law and and European labour and social law, Institut cross-border medical care)", organised du Travail. with the Institut de la Protection Sociale Européenne (Ipse) on behalf of Formation 2007/2008: Lectures on European social Inter Mutuelles Assistance, Niort, France. law within the scope of the "Master 2 Droit Social", Faculté de Droit. Matthias KNECHT 2007/2008: Seminars on German, French and European labour and social law, Institut WS 2006/2007: "Sozialwirtschaftliche du Travail. Gestaltungsformen im internationalen Rah- men", Fachbereich Allgemeinwissenschaf- Other Universities ten und Betriebswirtschaftslehre, University of Applied Sciences Kempten (2 hrs.). March/April 2006: Lecture: "Europäische Sozialpolitik/Gemeinschaftsrecht", Cours de Politiques Sociales Européennes within Friso ROSS the scope of the "Master International Franco-Polonais", University of Wroclaw, WS 2006/2007: "Grundkurs Öffentliches Poland (9 hrs.). Recht I", Arbeitsgemeinschaft, Ludwig- Maximilians-Universität Munich (2 hrs.). December 2006: Lecture: "Droit allemand et droit international" within the scope of the "Master 2 droit, Santé et Protection Sociale", Martha ROSSMAYER Université de Rennes I and Ecole Nationale de la Santé Publique, France (10 hrs.). WS 2006/2007: Lecture: "Einführung in die Politikwissenschaft", Evangelische March/April 2007: Lecture: "Europäische Fachhochschule Nuremberg, Fachbereich Sozialpolitik/Gemeinschaftsrecht", Cours Sozialwesen (2 hrs.). de Politiques Sociales Européennes within the scope of the "Master International SS 2007: Lecture: "Politische Steuerung Franco-Polonais", University of Wroclaw, und politische Beteiligung", Evangelische Poland (9 hrs.). Fachhochschule Nuremberg, Fachbereich Sozialwesen (2 hrs.). 12 March 2007: Guest lecture: "L'assurance dépendance en Allemagne" within the scope of the programme "Popula- Markus SICHERT tion et société", IDHEAP (Institut de hautes études en administration publique), Swiss Guest lectures Graduate School of Public Administration, Lausanne, Switzerland (4 hrs.). 15 November 2006: "The Law of Activa- tion in the Netherlands" (Master Course December 2007: Lecture: "Droit allemand "Labour Law"), Hugo Sinzheimer Instituut, et droit international" within the scope of the Amsterdam, Netherlands. "Master 2 droit, Santé et Protection Sociale", Université Rennes I and Ecole Nationale de 16 July 2007: "Die Rolle des Europäischen la Santé Publique, France (10 hrs.). Rechts für die Zukunft des deutschen Ge- sundheitswesens", held within the scope of Other seminars the seminar: "Europäische Sozialpolitik und das Deutsche Gesundheitswesen", Political 11 – 12 April 2006: Development seminar: Science Department, Leibniz Universität "Connaissance des systèmes de santé et Hannover. de la couverture maladie dans l´Union

145 REPORT 2006-2007

146 VII. Grantees and Guests REPORT 2006-2007

1. Grantees 2. Guests

1 August 2005 – 31 July 2006: Dr. Fangfang 1 October 2005 – 27 February 2006: YANG, Renmin University of China, Beijing, Surab KWIRKWAIA, Institute of State and P. R. China: "Systematic Comparison of Law of the Georgian Academy of Sciences, Governments' Responsibility for Social Tbilissi, Georgia: "Möglichkeiten und Gren- Insurance between Germany and China". zen für den Aufbau des Sozialstaates in postkommunistischen Gesellschaften". 1 January 2004 – 31 December 2006: Prof. Dr. Ockert C. DUPPER, University of 1 March 2006 – 26 May 2006: Corinne Stellenbosch, South Africa: "Entwicklungen PACIFICO, University of Fribourg, Switzer- und Reformen des Sozialrechts in den USA land: "Amtshilfe und Zusammenarbeit der in vergleichender Perspektive". Behörden und Einrichtungen gemäß Art. 8 Lit. e FZA (Freizügigkeitsabkommen)". 2 August 2006 – 31 August 2006: Prof. Dr. Makoto ARAI, University of Tsukuba, 1 April 2006 – 31 March 2007: Prof. Dr. Tokyo, Japan: "Rechtsfürsorge im Sozialstaat Akira MORITA, Toyo University, Tokyo, aus betreuungsrechtlicher Perspektive". Japan: "Überlegungen zur japanischen Rechtskultur – unter dem Gesichtspunkt 9 January 2007 – 9 April 2007: Dr. Martin der 'Amae' als Schlüsselbegriff". STEFKO, Charles University in Prague, Czech Republic: "Grenzüberschreitende 3 April 2006 – 31 March 2007: Prof. Dr. Sachverhalte im Sozialrecht des EU-Mit- Junko TAKAHATA, Kyoto Sangyo Univer- gliedstaates". sity, Japan: "System der Arbeitslosenversi- che rung in Deutschland und Japan (Rechts- 1 February 2007 – 30 June 2007: vergleichende Studie)". Dr. Winfried SÜß, Ludwig-Maximilians- Universität Munich: "Von der Reform in die 22 May 2006 – 15 December 2006: Dr. Krise. Der westdeutsche Wohlfahrtsstaat Heping CAI, Renmin University of China, 1966-1982". Beijing, P. R. China: "Das deutsche Recht der sozialen Sicherheit". 1 June 2007 – 31 August 2007: Dr. Matteo BORZAGA, Università degli 1 July 2006 – 31 July 2006: Prof. Dr. Studi di Trento, Italy: "Scheinselbständige Qinqin SHEN, China Institute of Industrial und arbeitnehmerähnliche Personen im Relations, Beijing, P. R. China: "Die Arbeits- italienischen und deutschen Sozialrecht". losenversicherung und die Sozialpolitik in Deutschland". 1 September 2007 – 30 September 2007: Dr. Nurs¸en CANIKLIOG˘ LU, Faculty of 3 July 2006 – 31 August 2006: Prof. Dr. Law, Marmara University, Istanbul, Turkey: Kwang-Seok CHEON, College of Law, "Sozialrechtliche Fragen der Subunterneh- Yonsei University, Seoul, Korea: "Die Ent- merschaft, Arbeitnehmerüberlassung und wicklung des deutschen Sozialrechts in des Betriebsübergangs". den letzten 10 Jahren unter der globalen Diskussion über die Krise und Reform des 15 September 2007 – 2 October 2007: Wohlfahrtsstaates". Prof. Dr. Kenichiro NISHIMURA, Kyoto University, Japan: "Wegeunfälle und Berufs- 25 July 2006 – 23 August 2006: Prof. Dr. krankheiten in der japanischen gesetzlichen Miyoko MOTOZAWA, College of Social Unfallversicherung". Sciences, University of Tsukuba, Tokyo, Japan: "Familienpolitik in der alternden 1 November 2007 – 30 November 2007: Gesellschaft". Dr. Grega STRBAN, University of Ljubljana, Slovenia: "Reformen in Slowenien".

148 VII. GRANTEES AND GUESTS

2 August 2006 – 15 August 2006: Dr. 30 October 2007 – 29 March 2008: Tulia Peter HERRMANN, ESOSC (European ACKSON, University of Dar es Salaam, Social Organisational and Science Con- Tanzania: "Coordination of Social Security sultancy), The Jasnaja Poljana, Clonmoyle, in the Southern African Development Ireland: "European Social Policy and Euro- (SADC) and East African Communities pean Social Law". (EAC) ".

1 September 2006 – 28 February 2007: 11 December 2007 – 10 April 2008: Yue Qingmei QIAO, Renmin University of FU, Graduate School of Humanities and China, Beijing, P. R. China: "Comparative Social Sciences, University of Tsukuba, Study between German and Chinese Acci- Tokyo, Japan: "The Effects and Challenges dents Insurance Systems". of the Integration Policy for Migrants in EU – The German Experiences and the 1 September 2006 – 30 September 2007: Harmonization in EU Level". Prof. Dr. Hitohiro TAKIZAWA, Momoyama Gakuin University, Osaka, Japan: "Rechts- stellung Behinderter in der Bundesrepublik Deutschland und in Japan".

9 October 2006 – 23 October 2006: Prof. Dr. Kazuaki TEZUKA, Chiba University, Japan: "Alternde Gesellschaft und Renten- probleme".

19 March 2007 – 31 March 2007: Prof. Dr. Makoto ARAI, University of Tsukuba, Tokyo, Japan: "Rechtliche Vertretung für Menschen mit Behinderung in den EU- Staaten".

3 July 2007 – 31 July 2007: Prof. Dr. Wei- In TSAI, National Cheng Kung University, Tainan City, Taiwan: "Grundprinzipien der Finanzierung von Sozialversicherungen".

26 July 2007 – 27 September 2007: Dr. Juan Díaz RODRÍGUEZ, Universidad de La Laguna, Tenerife, Spain: "Die Entwick- lung des sozialen Schutzes in Deutschland".

1 August 2007 – 31 August 2007: Prof. Dr. Makoto ARAI, University of Tsukuba, Tokyo, Japan: "Wechselbeziehungen zwischen Privatrecht und Sozialrecht".

10 August 2007 – 26 August 2007: Prof. Dr. Miyoko MOTOZAWA, University of Tsukuba, Tokyo, Japan: "Weiterentwicklung des gemeinsamen Projekts 'Familienpoli- tik'".

149 REPORT 2006-2007

150 VIII. The Institute REPORT 2006-2007

1. Personalia

Scientific Members Academic Assistants

Prof. Dr. Ulrich Becker, LL.M. (EHI) Katharina Beckmann (until 9/2006) Managing Director Dr. Edda Blenk-Knocke (from 11/2006) Prof. Dr. Bernd Baron von Maydell Martin Breuer Emeritus Mathias Enzler (from 11/2007) Prof. Dr. Dr. h.c. mult. Hans F. Zacher Dr. Ulrike Haerendel (from 7/2006) Emeritus Nuria Homfeld (until 9/2007) Susanne Jagla (until 9/2006) Dr. Matthias Knecht (until 4/2006) Doreen Knöfel (from 5/2006) Claudia Laes (until 11/2007) Luise Lauerer (from 4/2007) Martin Landauer (from 10/2007) Research Staff Claudia Matthäus (10/2006 to 2/2007) Magdalena Neueder (2/2007 to 5/2007) Carlos L. Cota (until 8/2006) Thomas Neumair (from 8/2007) Dr. Barbara Darimont Douglas von Rittberg (until 12/2007) Dr. Alexander Graser (until 7/2006) Melanie Schmidt (from 5/2007) Dr. Eva Maria Hohnerlein Markus Schön (8/2007 to 9/2007) Dr. Otto Kaufmann Ingo Seitz (from 10/2007) Dr. Matthias Knecht (from 5/2006) Dr. Peter A. Köhler Dr. Yasemin Körtek (from 9/2007) George Mpedi, LL.M. (until 7/2006) Prof. Dr. Hans-Joachim Reinhard Dr. Friso Ross Dr. Bernd Schulte Student Assistants Dr. Markus Sichert Dr. Christina Walser Lena Dobnig (until 9/2006) Felix Grollmann (from 4/2006) Evdokia Hatzieleftheriadi (3/2007 to 5/2007) Yasmin Holm (from 1/2007) Pia Jaeger (until 1/2006) Tomasz Jarczyk (2/2007 to 10/2007) Doctoral Candidates Despoina Kanellopoulou (2/2007 to 9/2007) Doreen Knöfel (until 4/2006) Nikola Friedrich (from 5/2007) Lukasz Kokot (from 8/2007) Viktória Fülöp (from 1/2006) Sarah Lempp (from 11/2006) Maria Grienberger-Zingerle (until 8/2006) Katharina Liebe (from 11/2006) Martin Landauer (until 9/2006; 8/2007 to Wiebke Maurus (2/2007 to 6/2007) 9/2007) Claudia Mayer (until 7/2006) Dongmei Liu (from 2/2006) Thomas Merl (2/2007 to 4/2007) Claudia Matthäus (until 9/2006) Sara Michalelis (from 11/2006) Janire Mimentza Philine Nau Magdalena Neueder (from 12/2007) Thomas Neumair (4/2007 to 7/2007) Anna Karina Olechna (from 1/2006) Antonia Pöhm (2/2007 to 4/2007) Benno Quade (until 6/2006) Oxana Rimmer (from 4/2007) Markus Schön (from 10/2007) Gianna Schlichte (from 4/2006) Quirin Vergho Miriam Schmid (from 9/2007) Ilona Vilaclara (from 10/2007) Markus Schön (until 7/2007)

152 VIII. THE INSTITUTE

Jingzhong Shang (2/2007 to 7/2007) Translation Sevices Mathias Skironi (from 11/2006) Danielle Soares Delgado Campos (2/2007 Esther Ihle to 4/2007) Eva Lutz, M.A. Robert Spisiak (until 3/2006) Stefan Stegner (6/2007 to 8/2007) Dorothee Streubel (2/2007 to 4/2007) Ralf Suhre (until 6/2007, from 10/2007) Katrin Vehling (4/2006 to 3/2007) Felix Walther (1/2006 to 10/2006) Administration (jointly with the Max Planck Digital Library)

Josef Kastner (head) Brigitte Albrecht (from 11/2006) Library Annemarie Batzek Jutta Czöppan (until 3/2006) Henning Frankenberger (head, from 6/2006) Daniela Gratzl (until 8/2006) Christiane Hensel (head, until 5/2006) Elfriede Hurmer (until 7/2006) Melanie Jackenkroll Karl-Heinz Katzbach Silke Klöckner (until 1/2006) Sylvia Klemm Kathrin Merker (from 10/2006) Heidrun Kohnle-Koitzsch (from 3/2007) Irina Neumann Eva Kraatz (from 5/2007) Andrea Scalisi Christine Moser Claudia Pethke (from 10/2006) Hans Puchberger (until 6/2006) Michael Reinert Andreas Schmidt

Secretariats and Other Services

Andrea Feucht (from 6/2006) Roswitha Ellwanger Anna Fenzl (from 11/2007) IT Marlin Freise (jointly with the Max Planck Digital Hertha Fricke Library) Dr. Monika Nißlein (from 9/2007) Werner Pfaffenzeller Dr. Andreas Wohlschläger (head) Vera Rosburg (until 6/2006) Oliver Janitza (from 3/2007) Dr. Martha Roßmayer (until 6/2007) Axel Römmelmayer Heike Wunderlich

153 REPORT 2006-2007

2. Scientific Advisory Board and Board of Trustees

Scientific Advisory Board Board of Trustees

Prof. Dr. Franz Ruland, Munich Prof. Dr. Dres. h.c. Hans-Jürgen Papier, (chair) Karlsruhe (chair)

Prof. Dr. Jos Berghman, Leuven Prof. Dr. Friedrich Buttler, Geneva Prof. Dr. Dagmar Coester-Waltjen, Dr. Rob Cornelissen, Brussels Munich Staatsministerin Christa Stewens, Munich Prof. Dr. Ottó Czúcz, Luxemburg Dr. Werner Tegtmeier, St. Augustin Prof. Dr. Moris Lehner, Munich Johan Verstraeten, Brussels Prof. Dr. Udo Steiner, Regensburg Dr. Manfred Wienand, Cologne Prof. Dr. Petr Tröster, Prague Dr. h.c. Matthias von Wulffen, Kassel

3. Library

The Institute's library offers a unique col- collections, 152 German and 39 foreign; and lection of specialised literature on German 12 newspapers, 3 German and 9 foreign. In and foreign social law and bordering fields. the past two years alone, the library's stock of In addition to the pertinent country-based monographs increased by nearly 10,000. social law literature, its holdings also cover European Community law, constitutional Publications by the Institute's scholars are law, public international law, family law, collected by the library staff, who record, economic law, consumer protection law and archive and make them accessible on the labour law, as well as some very area-spe- central electronic eDoc-Server of the Max cific collective fields concerning individual Planck Society. Institute publications are research projects. The holdings comprise moreover entered in an in-house database printed statutory material, periodicals, loose- maintained by the librarians, and are thus leaf editions, as well as published and "grey" made available via intranet. (monograph) literature from over 100 countries. Also, access is provided to diverse spe- In 2006, six new-acquisition lists were print- cialist databases (JURIS, Beck, LexisNexis, ed and forwarded to interested users. At the OECD online, etc.) and other electronic return of 2006/2007, these lists were replaced search options. The library moreover ensures by the more contemporary form of monthly the quick procurement of external literature electronic notices on the homepage. and documents, thus serving as a highly efficient research and working instrument for Special funds appropriated in 2007 by the the scholars and guests of the Institute, in- Max Planck Society under its library promo- cluding other academically interested users. tion programme were used to purchase additional material. In this way, gaps could be The library ranks among the leading research closed and certain holdings brought up to libraries and has the largest holdings of social date. Additions to collective fields focused on law literature worldwide. It currently com- China, Brazil, Spain, Italy and India. While prises over 100,000 volumes, consisting of procurements in 2006 had already exceeded some 8,000 bound journals and continuing the previous annual average by 50 percent, sets. Serial issues embrace 238 periodicals, the number of monographs newly entered in 111 German and 127 foreign; 191 loose-leaf

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2007 was enlarged by 100 percent compared Gesellschaft für wissenschaftliche Datenverar- with previous years. beitung on a central server in Göttingen. The individual libraries access the specific ad- In the course of comprehensive stocktaking aptations they themselves designed to meet as well as extensive reorganisation within the their particular needs. Via the information reading room and the stacks, numerous me- portal VLib (Virtual Library), the holdings of dia were catalogued for the first time. This nearly all MPI libraries and many other key further enhanced transparency and facilitat- local resources can be reached. ed the use of library holdings. The basement stacks were furnished with 800 running me- The adaptation to ExLibris Version 16 of the tres of compact shelving for new additions of integrated Aleph 500 library system demand- literature. Based on the inventory conducted ed major additional efforts on the part of the from February to May 2007, the entire stock staff. The next conversion to Version 18 is of monographs and serials has now been scheduled for spring 2008. This alteration is recorded in the online catalogue. And of not, however, expected to be quite as exten- course, all ordered media as well as works sive and will not entail any essential changes currently in processing can be researched via to the WebOPAC user interface. WebOPAC. The long-planned access to the Bibliotheks- In summer 2006, a reading corner with a verbund Bayern (BVB) will be implemented sofa and chairs was arranged and the offer of along with the installation of the above new leading European dailies was extended. Be- version of the library system. As a result, the sides catering for the information needs of acquisition of existing data upon title entry the Institute's scholars, this measure served will already be possible when cataloguing to create an inviting place to retreat and orders. Further synergy effects, the use of spend some time in the library. diverse foreign data of other large research libraries (such as, say, the Library of Con- Meanwhile, 35 MPI libraries use the Aleph gress) and a consistently high-level quality of software manufactured by ExLibris, and two descriptive cataloguing are thus anticipated. further institutes plan to do so in future. The The Institute's stocks will also become more entire system and, hence, the libraries' cata- visible in the process. All this will substan- logue are maintained and administered by the

155 REPORT 2006-2007

tially upgrade the information available to in the library. The systems of seven leading external users. European suppliers of library charging and software systems were carefully examined The library's vast collection of works is in- in the preliminary market viewing process. creasingly attracting the interest of other ac- Subsequently, these firms were invited to ademic circles. To meet the attendant needs, Munich to present their concepts on behalf the so far rather limited number of guest of the specific requirements of the Institute. workplaces has been extended to a present total of nine. With a view to the intensified The chief target was to improve and facili- use of the library and its holdings, Library tate library usability through the installation Regulations were drafted in the summer of of the apparatus. The usual time-consuming 2006 and took effect the following autumn. process of filling out borrowing slips when removing media for workplace use was gen- Since summer 2007, the library has been erally felt to be unsatisfactory. Borrowing equipped with three research terminals, was to become faster and easier. A concur- which are actively used. A total of five work- rent aim was to achieve more transparency place computers are available to guests. In by being able to ascertain the precise loca- the wake of RFID (Radio Frequency Identi- tion of every book at all times. The aspect fication) installation in autumn 2007, further of book security was not given any priority, reconfiguration measures have helped to but was merely a side-effect of the aforesaid give the library a more modern and appealing requirements. The overriding concern was touch. These measures have moreover made thus to enable the automatic self-issuing of it possible to welcome some 800 visitors to literature by library users and, in contrast to the library – in addition to the longer-term traditional libraries, to do so without open- foreign guests already working at the Insti- ing the book. The new RFID technology ap- tute. peared to meet these needs. The presentation of the concepts was followed by a tender The RFID Project procedure, which was concluded in Decem- ber 2006. The summer of 2006 marked the beginning of initial plans and ideas for the installation The successfully procured system permits of a self-issuing and book-security system the user to self-issue media at several termi-

156 VIII. THE INSTITUTE

nals installed to that end. By way of special ID cards the Institute's scholars are able to sign in at the stations and must simply place the selected media on the surface of the self- issuing terminal. The system recognises the individual media and their number, without it being necessary to open the books and scan a barcode. So-called stack borrowing means that several media can be issued in a single step. All issue proceedings are displayed on a user-friendly touch screen. The lending procedure is concluded with the touch of a fin- ger. Immediately after that, the altered location of the media is recorded on WebOPAC for the information of other users. Trips to the library can therefore be dispensed with as users can readily see in which office the needed book is located. Another frequent problem of the past was "string lending" among scholars, meaning the informal handover of media; this often entailed time-consuming searches. Now every research office possesses its own hand-held scanner with which loans may be transferred via the barcode label. The borrower must only log on to WebOPAC via his/her password and the new correct location of the medium is henceforth noted in the library catalogue.

In the course of stocktaking and preparations for the RFID project, the library team was at times reinforced by up to 12 student assistants. In accordance with staff instructions, they moved holdings, affixed barcode labels to all media, and thus performed valuable preliminary maintenance and cataloguing work. After attaching labels to the over 100,000 volumes, each of these media was located in the catalogue of the electronic library system at the special converting stations. Once the correct match was confirmed, the medium was assigned an RFID chip integrating it within the library software. The ExLibris graphic design of this label serves Institute library purposes. Moreover, its barcode dis- tinctly allocates it to the respective medium. The installation of the RFID self-issuing and book-security apparatus was successfully completed at the end of November 2007. The test phase will commence in January 2008. All functionalities will be available in spring 2008. Henning Frankenberger

157 REPORT 2006-2007

4. Homepage and Internet

An initial phase of longstanding cooperation fers of the Max Planck law institutes. At the for the design of a uniform Web presence and same time, this jointly established platform the implementation of a content management can be enhanced efficiently by the institutes system (CMS) was successfully concluded in in either concerted or individual actions. 2007 by the Max Planck law institutes (MPI for Comparative and International Private An additional project is devoted to the ex- Law, Hamburg; MPI for Comparative Pub- tension of the Institute's internal database lic Law and International Law, Heidelberg; Amalie, which is ultimately to include a MPI for Intellectual Property, Munich; MPI comprehensive publications database with for Foreign and International Criminal Law, miscellaneous query and citation modes. Freiburg; and this MPI). On that occasion, Amalie will moreover serve as an integrated the new Web pages were presented by the work instrument for all administrative activi- project groups involved in the cooperation. ties concerning scholars employed with the The groups, comprised of the respective IT Institute. This is to simplify work processes division members and researchers from the and heighten their efficiency. individual institutes, had been entrusted Axel Römmelmayer with the task of finding solutions for install- ing and adapting diverse data sources. This not only meant dealing with a range of IT- specific matters, but above all made it necessary to take account of concepts developed by the researchers for obtaining efficient access to juridical contents.

CMS has been installed on a common hard- ware platform used by all of the five above institutes. The joint editing server permits the efficient exchange of expertise between these institutes, each of which has also maintained its own Web server to allow the parallel application of specific software solutions developed in the past to meet individual requirements. The new system moreover enables researchers to administer their own Web pages and to create so-called personal homepages containing their publications and other contents. In this way, scholars can contribute their own input to the Web presentation of their institute and constantly update these entries. As required, the diverse editing functions can be used to define the online availability of any displayed information as well as the duration of data availability. All staff data maintained in internal databases and released for public access automatically appears in the relevant columns of an institute's Internet pages. This is an excellent example of the direct synergetic effects of modern computer-aided work. The advantages of such a highly standardised Website layout are readily appreciated by users as well. CMS facilitates quick and simple navi- gation among the manifold information of-

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5. Honours

Makoto ARAI Friso ROSS

2007: Humboldt Research Award 28 November 2006: Werner Pünder-Preis presented at the Humboldt Symposium, of the Johann Wolfgang Goethe-Universität, 22 – 25 March 2007, Bamberg. Frankfurt am Main.

With the conferral of the Humboldt Re- The Werner Puender Prize is awarded by search Award 2006 to the Japanese legal Frankfurt University and sponsored by Clif- scholar, Prof. Dr. Makoto ARAI (Tsukuba ford Chance to honour outstanding research University), the Humboldt Foundation hon- on topics dealing with "Freedom and To- oured an internationally outstanding aca- talitarianism". Friso Ross was awarded the demic who has spent many years in inves- prize for his dissertation "Justiz im Verhör: tigating the socio-political challenge of the Kontrolle, Karriere und Kultur während der ageing society from the perspective of private Diktatur von Primo de Rivera (1923-1930)" and social law. For nearly ten years Professor (Justice under interrogation: modes of con- Arai has regularly conducted research at the trol, career paths and cultural life under Pri- Max Planck Institute for Foreign and Inter- mo de Rivera's dictatorship, 1923-1930). In national Social Law in Munich and has been his study the author sheds light on an impor- involved in projects of the German-Japanese tant period for the history of law and justice research cooperation on family and social in Spain which preceded Franco's dictator- law. His special interest in comparative law ship and which has largely been forgotten and cultural comparisons was recently docu- in Germany. The formal address was held mented by his Japanese-language publication by Prof. Dr. Dr. h.c. mult. Michael Stolleis. of fundamental social law studies by Hans F. The prize was presented by the Chairman of Zacher edited in 2005. The Humboldt Re- the Association of Friends and Sponsors of search Award made it possible to extend his the University, Hilmar Kopper, and by the cooperation with the Max Planck Institute President of Frankfurt University, Prof. Dr. for Foreign and International Social Law, Rudolf Steinberg. enabling him to spend further periods of re- . search at the Institute in 2006 and 2007.

Ulrich BECKER

5 December 2007: Appointment as visiting professor at the South Western University of Financial Economics, Chengdou, P. R. China.

159 REPORT 2006-2007

6. Work of Institute Members in External Bodies

Ulrich BECKER − Research Advisory Board of the journal ZFSH/SGB Sozialrecht in Deutschland Editorships und Europa − Advisory Board of the Graduate School − Neue Zeitschrift für Sozialrecht (NZS) of Social Sciences (GSSS) of the (co-editor since 2000) University of Bremen − Schriften zum deutschen und euro- − Editorial Advisory Board of the Interna- päischen Sozialrecht, Baden-Baden tional Social Security Review (since 2000) − ISSA Advisory Board on Social Security − Kommentar zum SGB I (since 2001) Policy and Research − Schriftenreihe für internationales und − Research Advisory Board of the journal vergleichendes Sozialrecht, Berlin (since Social Security Studies (Shehui 2002) baozhang yanjiu), Beijing, P. R. China − Studien aus dem Max-Planck-Institut − Board of Trustees of the Institute for für ausländisches und internationales Labour Law and Industrial Relations Sozialrecht, Baden-Baden (since 2002) in the European Community (IAAEG), − Zeitschrift für ausländisches und Trier internationales Arbeits- und Sozialrecht − Board of Trustees of the Institut für eu- (ZIAS), Heidelberg (co-editor since ropäische Verfassungswissenschaften at 2002) the FernUniversität (supported distance − Zeitschrift für europäisches Sozial- und learning) in Hagen Arbeitsrecht, Wiesbaden (ZESAR) (co- − Selection Committee of the Alexander editor since 2002) von Humboldt Foundation for the − Zeitschrift für Sozialreform (ZSR), promotion of institute partnerships Wiesbaden (co-editor since 2004) − Advisory Commission for the project "Cross Border Welfare State" Memberships of steering committees, executive boards, research associations Other memberships

− Steering Committee of the Gesellschaft − Disciplinary Committee of the German für Versicherungswissenschaft und -ge- Athletics Association (DLV) staltung e.V. (GVG) − Selection Committee for the conferral of − Executive Board of the social insurance the dissertation award of the Gesellschaft division of the Deutscher Verein für Ver- zur Förderung der sozialrechtlichen sicherungswissenschaft Forschung e.V. − Executive Board of the Gesellschaft für − Working group of the Leopoldina/ Rechtsvergleichung Acatech on opportunities and problems − Executive Board of the German Section of an ageing society: the world of work of the International Society of Labour and lifelong learning and Social Security Law (ISLSSL) − Arbitrator's Award Office of the − Executive Board of the Deutscher Sozial- leading associations of statutory health rechtsverband insurance at the Bundesverband der landwirtschaftlichen Krankenkassen Memberships of advisory boards, boards of trustees, committees, research organisations Eva Maria HOHNERLEIN

− Research Promotion Council Deutsche − Referee for the journal "Sozialer Rentenversicherung Bund – research Fortschritt" network old-age pensions (FNA)

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Otto KAUFMANN Hans-Joachim REINHARD

− Centre du droit de l'entreprise, − Certification Committee of the German Strasbourg, France Science and Humanities Council on the − Laboratoire de droit social, Strasbourg, foundation of the University of Applied France Sciences of the German Federal Employ- − Commission "Europe", Ipse, Paris, ment Agency (HdBA), Mannheim Brussels − Conseil d'orientation, Ipse, Paris, Brussels Bernd SCHULTE − Working group "Zukunft der Sozialpoli- tik", Hans-Böckler-Stiftung, Düsseldorf − Member of the Executive Board of the − Expert Committee/Advisory Board Gesellschaft für Sozialen Fortschritt e.V. "Betriebsrentensysteme", Hans-Böckler- − Steering Committee of the Deutscher Stiftung, Düsseldorf Verein für öffentliche und private Fürsorge − Conseil Scientifique, Bulletin de Droit Comparé du Travail et da la Sécurité Sociale Markus SICHERT

− Coordination of the expert counselling Peter A. KÖHLER on "Social Security in Indonesia" on behalf of the Indonesian National Social − German-Nordic Lawyers Association Security System (NSSS) Task Force, in (DNJV) collaboration with the Gesellschaft für Versicherungswissenschaft und -gestaltung e.V. (GVG) and the Gesellschaft Bernd BARON VON MAYDELL für Technische Zusammenarbeit (GTZ), with assistance of Bernd Schulte et al. − Independent member and chairman of the board of arbitration pursuant to § 129 (8) SGB V (registered pharmacies) Hans F. ZACHER − Independent member of the Bundes- schiedsamt für die Kassenzahnärztliche − Honorary chairman of the Executive Versorgung (Federal arbitration office for Board of the Deutscher Sozialrechtsver- medical treatment by statutory health band insurance dentists) − Member of the Research Advisory Board − Deputy chairman of the division "Unter- at the German Federal Ministry of Eco- nehmensmitbestimmung vor dem Hinter- nomics and Technology grund europarechtlicher Entwicklungen" − Member of the Research Advisory Board of the Deutscher Juristentag 2006, Stutt- of the publication project "Geschichte der gart Sozialpolitik in Deutschland seit 1945" − Expert Commission on "Ziele in der (German Federal Ministry of Labour and Altenpolitik" of the Bertelsmann Social Affairs/Bundesarchiv) Foundation, Gütersloh − Member of the Pontifical Academy of − Group of Consultants for the Application Social Sciences of Article 76 of the European Code of − Member or the Board of Governors of Social Security, Strasbourg the Weizmann Institute of Science, − Evaluation Committee of the social in- Rehovot, Israel surance department of the Bonn-Rhein- Sieg University of Applied Sciences − Board of Trustees of the Foundation for Liberal Arts and Science, Domus Dorpatensis, Tartu, Estonia

161 REPORT 2006-2007

7. Collaborations

German Federal Ministry of Family and Bernd BARON VON MAYDELL, Affairs, Senior Citizens, Women and Bernd SCHULTE Youth, Berlin Eva Maria WELSKOP-DEFFAA Disability in Asia and Europe, a comparative approach to policy and law and Eva Maria HOHNERLEIN, Edda Based on a comparative approach, the inter- BLENCK-KNOCKE disciplinary project works out strategies to solve disability-related problems. It investi- Self-Responsibility, Private and Public gates the forms of disability in an ageing soci- Solidarity – A Comparative View of ety, the impacts of disability on the individual Gender Role Models in Family Law and case and the family, policies and legislation Social Law in Europe on behalf of persons with disabilities, as well The project looks into the gender role models as the handling of disability in various coun- existing in society and law, and their signifi- tries of Europe (Germany, Belgium, Nether- cance for independent as well as derived in- lands, Italy, Sweden, Spain, Czech Republic) come security under family and social law in and Asia (India, Japan, Republic of Korea, the countries of Denmark, France, Germany, Republic of China/Taiwan, P. R. China). United Kingdom and Italy. The aim is to gain insight into the experiences of the countries under investigation and to ‘de-ideologise' dis- Europäische Akademie on European cussion over the male breadwinner model. Social Policy, Bad Neuenahr-Ahrweiler Carl F. GETHMANN University of Tartu, Department of Social Chuo University, Tokyo Sciences, Estonia Keimei KAIZUKA Maju LAURISTIN National Institute of Population and Social Security Research, Tokyo and Bernd BARON VON MAYDELL Tetsuo FUKAWA Family Policy in Estonia and Ulrich BECKER, Matthias KNECHT The investigation focuses on problems of Es- tonian family policy, notably in comparison German-Japanese Joint Research on with other European developments. Social Security (GJJRSS) A group of German and Japanese economists and legal scholars investigated the German Gesellschaft für Technische Zusamme- and Japanese social insurance schemes, narbeit (GTZ), Eschborn notably health, pension and long-term care Asih Eka PUTRI, Miroslaw MANICKI, insurance. Besides rendering an overview of Oka MAHENDRA the current situation they looked into the le- Gesellschaft für Versicherungswis- gal possibilities as well as the economic ne- senschaft und -gestaltung e. V. (GVG), cessities and elaborated feasible options for Cologne dealing with the social insurance reforms on Martin WREDE the agenda in both countries. on behalf of the Indonesian Government (Ministry of Health, Ministry of Labour and Transmigration, Ministry for People's Wel- German University of Administrative fare) and the Sciences, Speyer National Social Security System Task Rainer PITSCHAS Force Ludwig-Maximilians-Universität Heru MARTONO, Andi Syahrul (LMU) Munich, Japan-Zentrum PANGERAN Peter PÖRTNER

162 VIII. THE INSTITUTE

and Ulrich BECKER, Markus SICHERT ciples of social security law in various EU Member States, the EFTA Member States Social Security in Indonesia – reform- and the EU Accession States. The criteria induced concepts for a basic legislation relevant to the investigation were established governing a comprehensive social security by the cooperation partners and will be ex- system for all citizens amined by the reporters with regard to the The Institute has been invited to exercise an respective legal systems and incorporated advisory function in assisting the Task Force into the country reports. installed by the Indonesian Government in 2006 for the project entitled "Development of a Social (Health) Insurance System in In- Kyoto University donesia". The project has been entrusted to Kenichiro NISHIMURA the GVG and is sponsored by the GTZ. and Ulrich BECKER, Bernd BARON VON MAYDELL Institute for Employment Research of the Federal Employment Agency (IAB), Perspectives of accident insurance in Nuremberg Japan and Germany Regina KONLE-SEIDL The collaboration project focuses on the ex- Institute for the Study of Labour (IZA), change of current problems of accident in- Bonn surance law in Japan and Germany. Werner EICHHORST and Otto KAUFMANN Max Planck Institute for Demographic Research, Rostock Activating labour market policy – a com- James W. VAUPEL, Marc LUY, Rainer parison HEUER, Andreas EDEL This international and interdisciplinary project investigates the labour market pol- and Ulrich BECKER, Matthias KNECHT icy measures of "activation", as well as the implementation of new approaches for the MaxNetAging Research School (MNARS) reintegration or initial integration of job- under the MaxNetAging-Programme of seekers or simply unemployed unwilling to the Max-Planck-Gesellschaft take up work. Legal scholars, economists MaxNetAging conducts interdisciplinary, and social scientists from Germany, the transnational research into the causes, United States, France, Denmark, Sweden, patterns, processes and consequences of the United Kingdom, Switzerland and the human ageing and is part of the compre- Netherlands participated in this project. hensive research activities carried out by the Max-Planck-Gesellschaft in this field. MNARS grants scholarships and offers Katholieke Universiteit Leuven, research opportunities at the institutions Research Unit Europe and Social Security participating in the project in order to as- (RUESS) sist junior researchers in dealing with the Danny PIETERS, Paul SCHOUKENS subject of human ageing. and Ulrich BECKER, Friso ROSS Max Planck Institute for European General Principles of Social Security Law Law History, Frankfurt am Main in Europe Michael STOLLEIS The research project is devoted to a comparative legal analysis of the fundamental prin- and Ulrike HAERENDEL

163 REPORT 2006-2007

The Social History of Pension Insurance sector workers in Germany and South Africa. in the German Empire: 1871-1914 The collaboration also includes exchanges The research project investigates the societal with lecturers from other South African uni- background to the origin of German pension versities. insurance and its impact on the society of the Kaiserreich. The project is carried out by Dr. Ulrike Haerendel who does biographical University of Tsukuba research, views the archives and conducts Makoto ARAI the study. University of Heidelberg Andreas KRUSE University of Dortmund Renmin University of China, Gerhard NAEGELE Department of Social Security, Beijing Gongcheng ZHENG and Bernd SCHULTE

and Ulrich BECKER, Barbara DARIMONT Adult Guardianship Law in Comparative and International Perspective Comparative law analysis of current issues; A comparative law project on the adult guard- investigation into the factors influencing the ianship law (in Germany "Betreuungs recht") development of Chinese social law (includ- of Germany, France, the Netherlands, Japan, ing the aspects of its creation and reception); Canada, the United States and the United exchange of researchers and junior research- Kingdom, currently focusing on Germany ers. and Japan.

University of Illinois, Institute of University of Tsukuba, Graduate School Government and Public Affairs of Humanities and Social Sciences Robert RICH Mioko MOTOZAWA

and Ulrich BECKER, Markus SICHERT and Bernd BARON VON MAYDELL, Eva Maria HOHNERLEIN Choice and Competition in Hospital Health Care Family Policy in the Ageing Society The interdisciplinary project is based on – A German-Japanese Comparison comparative law and deals with competition A comparative analysis of the family policies and regulation as conceptions of normative of Japan and Germany including caregiving steering in the health care sector. It seeks and educational infrastructures, cash ben- to shed light on competitive instruments as efits and other social policy measures. well as on functional and steering modes in the health care sectors of the United States, Switzerland, the Netherlands and Germany. Research is conducted by both social law experts and economists.

University of Johannesburg, Centre for International and Comparative Labour and Social Security Law (CICLASS) Marius OLIVIER

and Ulrich BECKER

Research into the coordination of social security systems in SADC and into the institutional frameworks for extending access to social security for non-citizens and informal

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8. Legal Opinions

Peter A. KÖHLER, Ulrich BECKER 6 March 2007: Opinion on behalf of the Amtsgericht Hamburg-Barmbek on the 15 October 2006: Opinion on behalf of the assessment of French pension entitlements International Tribunal for the Law of the Sea, in effecting pension rights adjustment. Hamburg on the Tribunal's civil servants' claims for refund of the contributions to 17 April 2007: Opinion on behalf of the German unemployment insurance. Amtsgericht Mülheim a.d. Ruhr on the assessment of British pension entitlements in effecting pension rights adjustment. Bernd BARON VON MAYDELL 12 June 2007: Opinion on behalf of the December 2006: The German accident Oberlandesgericht Karlsruhe on the assess- insurance scheme, contribution to a ment of Turkish pension entitlements in comparative opinion on behalf of the effecting pension rights adjustment. Chinese Government on the coverage of work accidents. 21 September 2007: Opinion on behalf of the Amtsgericht Osterholz-Scharmbeck on the assessment of U.S. pension Hans-Joachim REINHARD entitlements in effecting pension rights adjustment. 13 January 2006: Opinion on behalf of the Amtsgericht Laufen on the assessment of Austrian pension entitlements in effecting Christina WALSER pension rights adjustment. 29 March 2006: Opinion for Dr. Stefan 7 April 2006: Opinion on behalf of the Gress on behalf of the Ministry of Health, Amtsgericht Freiburg on the assessment Toronto, Canada, on Social Health of U.S. pension entitlements in effecting Insurance, Private Health Insurance pension rights adjustment. and Waiting Lists in Germany and the Netherlands. 3 July 2006: Opinion on behalf of the Oberlandesgericht Köln on the assessment 30 January 2007: Opinion on behalf of of British pension entitlements in effecting the Landgericht Köln on recourse claims pension rights adjustment. regarding incapacity benefits under Dutch law. 20 October 2006: Opinion on behalf of the Oberlandesgericht Karlsruhe on the assessment of Taiwanese pension entitlements in effecting pension rights adjustment.

15 February 2007: Opinion on behalf of the Ifo Institute Munich on the assessment of the pension scheme of the Catholic associations.

12 January 2007: Opinion on Behalf of the on the Amtsgericht Pforzheim on the assessment of Estonian pension entitlements in effecting pension rights adjustment.

165 REPORT 2006-2007

9. Alumni Network

The Institute has started to build up an alum- Alumni Meeting 2007 ni network, offering ex-colleagues the opportunity to correspond with one another and To enable personal and not just virtual con- to keep in touch with the Institute. Former tacts between members, an alumni meeting guests who were active at the Institute over is to take place at the Institute once a year. prolonged periods have also been integrated The first such meeting was held on 7 Sep- in the network. As have alumni of the direc- tember 2007 in Munich. It was attended tor's earlier chair for Public Law, German by former staff who had been active at the and European Social Law at the Faculty of Institute over the last three decades as well Law of the University of Regensburg, since as by guests from various countries. The oc- their network became "homeless" when casion provided an agreeable setting for the Ulrich Becker accepted the post in Munich report on most recent developments of the in 2002. The database Alumnisite has been Institute and its current research projects installed to this end, enabling members to (Becker), the presentation of library innova- contact one another on academic or personal tions (Frankenberger), and an academic lec- issues. Alumni may thus register and create ture on the Dutch health insurance reform their own profiles. The data they wish to dis- against the background of the new German close to other users is left completely to their law on strengthening competition in statu- own discretion. For instance, some members tory health insurance (Walser). This lecture have merely provided their office addresses, illuminated major elements of Dutch health while others have furnished details about insurance, which has been reconfigured to their current fields of work and focal points enhance competition among the diverse of interest. In this way, an active exchange is actors. The paper likewise pointed out the made possible, with the professional aspect lack of such parameters in German health likely to be in the foreground initially. Yet, insurance law, where competition for lower seeking contacts for personal reasons might contribution rates will be restricted rather also be helpful, for example, prior to a trip than promoted through the planned Health abroad, to obtain particulars about the coun- Fund. try of another alumnus or accommodations The presentations were followed by a pleas- there. Apart from that, Alumnisite will sup- ant get-together that afforded ample oppor- ply information about activities of the Insti- tunity for both personal and scholarly ex- tute, thus keeping alumni abreast of current changes. events – whether lectures, publications or Quirin Vergho / Christina Walser staff changes.

166 IMPRESSUM

Imprint:

Content Authority: The Managing Director Prof. Dr. Ulrich Becker, LL.M. (EHI) Max Planck Institute for Foreign and International Social Law Amalienstraße 33 80799 Munich, Germany Tel.: +49 89 38602-511 Fax: +49 89 38602-590

Design & Litho: HM Scherer GmbH Druck & Kommunikation Munich

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Report 2006-2007

Max Planck Institute for Foreign and International Social Law