Report 2006-2007 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.