European social law

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The European social law covers all legal norms of European law , which the social security of citizens in cross-border situations within the European Union serve. European social law is part of international social law . As supranational law, European law takes precedence over domestic law and supersedes it for a large number of issues in the sense of priority of application . It serves to coordinate, standardize and harmonize the social security systems of the EU member states . In this sense, it decides under which social and labor law conditions EU citizens can work in another member state and what consequences this has for their entitlements acquired in the member state social security systems, for example in the granting of old-age pensions or unemployment benefits based on advance payments and contribution periods with certain social benefit providers .

The concept of European social law goes further than that of social law in German law and, similar to French law, also includes matters that are otherwise attributed to labor law , for example the implementation of equal treatment for men and women in working life. Conversely, for the same reason, it is questionable whether the right of care should be included in social law in the sense of European law. The practical importance of European social law can be assessed from the fact that a considerable part of the case law of the European Court of Justice has been given in this area of ​​law; by 2016 there were over 500 judgments.

history

Efforts to develop social standards existed even before the European Communities were founded. In 1900, the International Association for Statutory Labor Protection was founded in Paris , which maintained an international labor office in Basel that took care of minimum working conditions such as working time limits and the prohibition of child labor and night work for young people. The International Labor Organization (ILO, English abbreviation: ILO) was founded in 1919 as a successor by Article 427 of the Versailles Treaty , which since then has been setting corresponding labor standards internationally, i.e. also with effect outside of Europe.

After the Second World War , a number of agreements were made to regulate economic cooperation and working conditions, but also human rights, including social rights. This process began with the establishment of the OECD in 1948 and the Council of Europe in 1949 with the European Convention on Human Rights (ECHR) in 1950. The first European Community was then the European Coal and Steel Community ( ECSC) in 1951. The European Welfare Agreement of the Council of Europe followed in 1953. In 1957 the European Economic Community was implemented the Treaty of Rome was founded as a common economic area and as a legal community. The European Social Charter of the Council of Europe followed in 1961. To this day, the law of the European Union and the Council of Europe coexist. The EU accedes to the European Convention on Human Rights in accordance with Art. 6 Para. 2 TEU, so that this, together with the EU Charter of Fundamental Rights, forms a minimum standard below which the EU organs must not lag behind.

Since the late 1950s , the European Union's social policy has been gradually implemented in Community law. In doing so, the primary law of the founding treaties and the secondary law enacted on the basis of them have been repeatedly adapted to the national law of the member states, which has since changed. Conversely, however, national legislation was also oriented towards Community law. It started with Regulations (EEC) No. 3 and No. 4, which were issued in 1958 as the first regulations ever after the entry into force of the EEC Treaty. Regulation (EEC) 1612/68 on the free movement of workers in the European Community (Regulation on freedom of movement) dates from 1968. In 1971 the Migrant Workers Ordinance VO (EEC) No. 1408/71 followed , which together with the Implementing Ordinance VO (EEC) No. 574/72 with several amendments formed the basis for social security for migrant workers and cross-border commuters in the EU. With effect from May 1, 2010, they were replaced by Regulation (EC) No. 883/2004 and the related Implementing Regulation No. 978/2009 for EU citizens; For nationals of third countries, the Migrant Workers Regulation No. 1408/71 remains applicable for the purposes of the Third State Regulation (EC) No. 859/2003.

Governing Law

Primary law

The basis of European social law in primary law are Art. 45–48, 151–161 TFEU and Artt. 27–38 Charter of Fundamental Rights in conjunction with Art. 6 TEU. The competence for the European Union in the field of social security is contained in Art. 153 TFEU.

The European Union is a legal and economic union, not a social union. The fundamental freedoms of Union law serve to realize the common internal market . European Union law has the task of providing social security for the free movement of workers between the member states. In this respect, Art. 48 (1) TFEU provides for the introduction of a system, “the immigrating and emigrating employees and self-employed persons as well as their entitled relatives ... the aggregation of all times taken into account under the various domestic legal provisions for the acquisition and maintenance of the entitlement to benefits and the calculation of benefits ”and“ payment of benefits to persons residing in the territories of the Member States ”.

The guiding principle of European social law is that the EU does not create its own supranational law from which uniform and direct entitlements to certain social benefits arise for the entire Union. According to the principle of limited individual authorization , it lacks the competence to do this. Since the Union itself cannot levy any public charges, it could not bear such services itself. Rather, the Union limits itself to coordinating the existing social security systems of the EU member states if there is a conflict between member state social law regimes.

It is necessary to regulate which national social security system intervenes when citizens move to another Member State as part of an employment relationship or self-employed ( posting ), and which institutions are responsible for them, because it depends on where the persons concerned pay social security contributions have to pay what entitlements exist and how the benefits are to be provided, for example for medical treatment or for payment of a pension for old age or unemployment benefit . Insofar as the granting of benefits depends on contribution times, which are in particular a prerequisite for entitlement to benefits in pension or unemployment insurance , it must be regulated how these times are to be calculated if the person concerned changes between the member states of the Union. Another aspect is the so-called exportability of social benefits, i.e. the question of the extent to which benefits can be provided to other EU countries if the entitlements were acquired in one member state, but the person concerned moves to another member state during or to provide benefits. This includes drawing an old-age pension abroad or receiving medical treatment in a clinic in another member state of the European Union at the expense of the local health insurance company .

Secondary and domestic law

This section presents the situation in Germany . Help us to describe the situation in other countries.

Principles

The free movement of workers within the Community is regulated by Regulation (EEC) No. 1612/68.

On the basis of Articles 48 and 153 TFEU, Regulation (EC) No. 883/2004 and the supplementary Implementing Regulation No. 978/2009 were issued. The rules contained therein take precedence over national law. For German social law , this also follows from Section 30 (2) SGB ​​I , Section 6 SGB ​​IV . European regulations are directly applicable law in the member states of the EU. They implement the requirements of European primary law described above.

Accordingly, the law that applies at the place of employment is to be applied to a situation, Art. 11 Reg. No. 883/2004 (place of employment principle). Union citizens are to be equated with the citizens of the respective member state, Art. 4 Reg. No. 883/2004. Insurance periods that were acquired in different member states of the European Union are to be added up according to the pro rata temporis principle . No person concerned should fear disadvantages in terms of social security by moving to another country. In order to achieve this, the calculation method is intended to ensure that, in case of doubt, migrant workers are more likely to be in a somewhat better position than colleagues who were only insured in one Member State during the same period. The procedure is the basis for an international insurance history that records entitlements from the social security systems of several member states. The details of this can be found in the Implementing Regulation No. 978/2009.

These requirements do not apply to the entire social law, but only to the areas of law listed in Art. 3 I Regulation No. 883/2004 (benefits in the event of illness , maternity and paternity , disability , old age, to survivors , accidents at work and occupational diseases , death benefit , Unemployment , early retirement benefits and family benefits ). The legal terms used there are not necessarily congruent with those of the social legal systems of the member states. In case of doubt, it must be determined by interpretation whether a national service can be assigned to one of the terms in the catalog.

The program contained in Regulation No. 883/2004 is not a comprehensive and exhaustive regulation of the cases and areas of law addressed therein. For example, according to the case law of the Federal Social Court, unemployment benefit I in accordance with the constitutional interpretation of Section 30 SGB I is also to be paid to people who are in other EU countries near the border if there is sufficient availability for job placement.

Third country nationals

For nationals of third countries, in accordance with Art. 90 Regulation No. 883/2004, Migrant Workers Regulation No. 1408/71 continues to apply.

Exclusion of benefits for EU citizens

It is always questionable to what extent a member state can legally exclude the granting of benefits from a social security system to EU citizens despite these requirements. In the German social long-term care insurance, the exclusion of benefits during stays abroad from the care allowance in accordance with Section 37 SGB ​​XI had been declared by the European Court of Justice to be contrary to European law, insofar as travel to other EU countries was also included. The provision then had to be adapted to the case law. The judgment is also expressly included in recital 24 of Regulation No 883/2004.

Services of the welfare law are not the "law of the European Court social security attributable" but the social welfare and therefore not exportable when going abroad. The European Welfare Agreement of the Council of Europe , which regulates the mutual granting of benefits to nationals of states that have ratified this agreement, is also applicable to these cases . The obligation to perform can be excluded if a state declares a reservation in this regard. In the case of the German basic security for job seekers , this took place in 2016, which led to an extensive discussion about the entitlement to benefits, especially for EU citizens who were staying in Germany and who had applied for benefits under SGB II.

In simple law, Section 7, Paragraph 1, Sentence 2, SGB ​​II , stipulates that certain groups of foreigners do not receive any benefits under SGB II. Unemployed EU citizens are therefore excluded from benefits for the first three months of their stay in Germany. According to the case law of the European Court of Justice, this exclusion is indeed a violation of the principle of equal treatment according to Art. 4 Regulation No. 883/2004, but it is not objectionable under European law and is therefore permissible. Legislation and jurisprudence on the exclusion of benefits for foreigners are subject to intensive discussion, which is why detailed explanations are not provided at this point and reference is made to the latest version of the relevant literature. The export of services according to SGB II is excluded under European law in accordance with Art. 3 Para. 3, 70 in conjunction with Annex X lit. b) Regulation No. 883/2004.

Other issues

This section presents the situation in Germany . Help us to describe the situation in other countries.

Although the coordinating law of social insurance is at the center of European social law, there are increasing issues in this area that arise from contexts of economic and constitutional law, because competition law aspects are addressed with the social insurance obligation or the cross-border provision of services . Such questions are of great importance for the common internal market . But also beyond that, individual cases fall under European social law, the focus of which is in related areas of law, for example family law .

Germany

At the height of neoliberalism around the year 2000, compulsory membership in the German statutory accident insurance was questioned with reference to European law. A campaign directed against the contribution notices of the responsible trade associations, which were based on a university dissertation by Richard Giesen from 1995, led to a wave of lawsuits from a small group of entrepreneurs. She was rejected by the Federal Social Court . The BSG had not referred the legal questions in question to the European Court of Justice for a preliminary ruling because it was of the opinion that this was not necessary. In 2009 the European Court of Justice finally confirmed its previous jurisprudence in the Kattner Stahlbau case on the basis of a request for a preliminary ruling from the Saxon State Social Court .

The provision of services abroad has long been in dispute, especially in the statutory health insurance . For the reimbursement of costs for services in other EU countries, there is Section 13 Paragraph 4 SGB ​​V , which implements the relevant case law of the European Court of Justice into domestic law.

Last but not least, the law of child and youth welfare also has international and transnational references.

Jurisdiction and Procedure

The international liaison offices of the social insurance institutions are responsible for handling matters relating to European law.

criticism

From a Europe-friendly perspective, there is increasing criticism that the Union's social policy does not go far enough. In particular, the introduction of European unemployment insurance is repeatedly called for. The proposal refers to an initiative of the EU Social Commissioner László Andor in 2014. It was also approved in January 2019 by the President of the EU Commission, Jean-Claude Juncker . In March 2019, the French President Emmanuel Macron proposed the introduction of "basic social security ..., equal pay in the same job and a Europe-wide minimum wage that is adapted to each country and renegotiated every year" at European level.

On the other hand, from a conservative stance, it is complained that European integration is leading to a “weakening of national sovereignty”, also in the area of ​​social legislation. This has been "massively promoted" in particular by the case law of the European Court of Justice. Europe "governs the welfare state policy of the EU members, but has so far refrained from developing its own welfare state".

European social law as a science

The Max Planck Institute in Munich was a pioneer in research on international and European social law in Germany. Hans F. Zacher's project group there was founded in 1976 and transferred to the Max Planck Institute for Foreign and International Social Law in 1980. It has been called the Max Planck Institute for Social Law and Social Policy since 2011 . The official opening of the institute took place on June 3, 1982.

The basics of international and European social law are part of the legal training in the elective social law at German universities.

From a comparative legal point of view, a distinction is made between continental European, Anglo-Saxon, Scandinavian and developing countries, each with their own legal families.

See also

literature

Textbooks and manuals

Comments

  • Maximilian Fuchs (ed.): European social law . 7th edition. Nomos, Manz, Helbing Lichtenhahn, Baden-Baden, Vienna, Basel 2018, ISBN 978-3-8487-4305-6 .

Incidentally, the comments on the relevant provisions of the TEU / TFEU.

Contributions to the new regulation 2010

  • Eberhard Eichenhofer: New Coordination of Social Security (VO (EG) Nos. 883/2004, 987/2009) . In: SGb 2010, 185–192.
  • Udo Geiger: What will change for the unemployed due to the new regulations on EU coordination? In: info also 2010, 147–151.
  • Bernd Schulte: The new European social law coordination - The regulations (EC) No. 883/04 and No. 987/09. In: ZESAR 2010, 143-154, 202-216.

Web links

Individual evidence

  1. ^ Eberhard Eichenhofer : Social law . 10th, revised edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155319-6 , Rn. 86 .
  2. ^ Gerhard Igl , Felix Welti : Social law. A study book . 8th, revised edition. Werner, Düsseldorf 2007, ISBN 3-8041-4196-X , § 88 Rn. 3 .
  3. ^ Raimund Waltermann : Social law . 13th, revised edition. CF Müller, Heidelberg 2018, ISBN 978-3-8114-9586-9 , Rn. 84 .
  4. ↑ The Versailles Peace Treaty with the final protocol and the Rhineland Statute as well as the mantle note and German implementing provisions . With a table of contents and subject index, along with an overview map of Germany's current political borders. New revised edition as revised by the London Protocol of August 30, 1924 . Hobbing. Berlin 1925. Digitized version of the University and City Library of Cologne . Public domain. P. 231.
  5. ^ Michael Stolleis : History of social law in Germany. A floor plan . 1st edition. Lucius and Lucius, Stuttgart 2003, ISBN 3-8252-2426-0 , p. 314-317 ( leibniz-publik.de ).
  6. ^ Thorsten Kingreen, Ralf Poscher: Grundrechte. Constitutional Law II . 32nd, revised edition of the textbook founded by Bodo Pieroth (Westfälische Wilhelms-Universität Münster) and Bernhard Schlink (Humboldt University Berlin). CF Müller, Heidelberg 2016, ISBN 978-3-8114-4167-5 , Rn. 49, 70f. .
  7. ^ Raimund Waltermann : Social law . 13th, revised edition. CF Müller, Heidelberg 2018, ISBN 978-3-8114-9586-9 , Rn. 90 .
  8. ^ A b Stefan Muckel , Markus Ogorek : Social law . In: Grundrisse des Rechts . 4th, revised edition. Beck, Munich 2011, ISBN 978-3-406-62637-1 , § 21 Rn. 3 .
  9. ↑ ECJ, Rs. 6-64, judgment of the Court of 15 July 1964 , ECLI: EU: C: 1964: 66, ECR 1964, 01253.
  10. ^ Raimund Waltermann : Social law . 13th, revised edition. CF Müller, Heidelberg 2018, ISBN 978-3-8114-9586-9 , Rn. 98 .
  11. ^ A b Eberhard Eichenhofer : Social law . 10th, revised edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155319-6 , Rn. 93 .
  12. ↑ Udo Geiger: What will change for the unemployed due to the new regulations on EU coordination? . In: info also 2010, 147, 151 following BVerfG - 1 BvR 809/95 of December 1999.
  13. ↑ ECJ, Case C-160/96, judgment of March 5, 1998 , Slg. 1998 I-00843, ECLI: EU: C: 1998: 84 - Molenaar.
  14. ↑ ECJ Coll. 1983, 1427 - Piscitello
  15. ↑ ECJ, Case C ‑ 333/13, judgment of November 11, 2014 , ECLI: EU: C: 2014: 2358 - Dano.
  16. ↑ ECJ, Case C-67/14, judgment of 15 September 2015 , SGb 2015, 638, ECLI: EU: C: 2015: 597 - Alimanovic.
  17. ↑ Ute Kötter: The decision of the ECJ in the Alimanovic case - the end of European social citizenship? In: info also . No. 1 , 2016, p. 3 ( nomos.de [PDF]).
  18. ↑ Printed in the Aichberger loose-leaf collection : Social Code under No. 200.
  19. ↑ Trade associations - a forgotten monopoly. A plea for competition in occupational accident insurance . Version of January 1, 2009 in the Internet Archive. Retrieved February 20, 2019.
  20. ↑ Richard Giesen : Social security monopoly and EC treaty. An investigation using the example of the statutory accident insurance in the Federal Republic of Germany . Nomos, Baden-Baden 1995, ISBN 3-7890-3967-5 .
  21. ↑ ECJ, Coll. 2002, I ‑ 691 - Cisal.
  22. ↑ ECJ: Judgment of the Court of Justice (Third Chamber) of March 5, 2009. Kattner Stahlbau GmbH v Maschinenbau- und Metall-Berufsgenossenschaft. Case C-350/07. Coll. 2009, I-01513. ECLI: EU: C: 2009: 127. March 5, 2009, accessed January 31, 2019 .
  23. ^ Wolfgang Spellbrink: The contribution right of the statutory accident insurance . In: Social Law . tape 2 , no. 1 , 2012, ISSN  2193-5157 , p. 17–41, 34–41 with further references , JSTOR : 23993616 .
  24. ↑ German Bundestag, Scientific Services (ed.): Services and other tasks of child and youth welfare. On the entitlement of foreign children according to domestic, national and international law . Berlin June 30, 2016 ( bundestag.de [PDF]).
  25. ↑ Ulrike Guerot : The failure of the political center. In: Eurozine. June 15, 2016, accessed on February 20, 2019 (first in: Blätter für German and international politics).
  26. ↑ Brussels: EU Commission plans to set up a European unemployment insurance scheme . August 25, 2014 ( welt.de [accessed February 20, 2019]).
  27. ^ Unemployment insurance: Juncker for a European solution. In: today. January 5, 2019, accessed February 20, 2019 .
  28. ↑ Emmanuel Macron: For a new beginning in Europe. L'Elysée, March 4, 2019, accessed March 11, 2019 .
  29. ^ Gabriele Metzler : The German welfare state. From Bismarck's successful model to nursing care . 2nd Edition. Deutsche Verlags-Anstalt, Stuttgart 2003, ISBN 3-421-05489-4 , pp. 246-254, 251 f .
  30. ↑ New Max Planck Institute for Foreign and International Social Law . In: Social Progress . tape 31 , no. 8 , 1982, pp. 189 , JSTOR : 24508567 (side lights).
  31. ↑ For more details: Eberhard Eichenhofer : Sozialrecht . 10th, revised edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155319-6 , Rn. 104–106 with further references .