International social law

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

The International Social Law (technical language abbreviation: ISR ) includes the rules of law that deals with the collision of national social law regimes deal. International social law standards regulate which domestic law is to be applied to a situation that transcends national borders. Domestic or international law may apply to such a situation ( intergovernmental agreements or the supranational law of the European Union ). In the first case, the concept of international social law refers to that of private international law . Examples of this are the posting of employees within the framework of employment relationships to another country or generally staying as a tourist or as a migrant in a country other than their home country, where another or possibly no significant social security system exists. The question to be settled here is whether contributions to social security are to be paid in the event of employment and, if so, to which, and which body has to provide the services required by the person concerned, for example for medical treatment or basic security . Then it is determined which national social system someone has access to. Last but not least, the law of child and youth welfare also has international and transnational references. The most important case of international social law is European social law . It serves to coordinate, standardize and harmonize the social security systems of the member states of the European Union .

Germany

principle

The starting point in German law for dealing with cross-border issues is Section 30 of  Book I of the Social Code, which provides for the principle of territoriality (more rarely: territorial principle). German social law is therefore to be applied in principle if a person concerned has his or her place of residence or habitual abode within the scope of the Social Security Code, unless otherwise stipulated in supranational or international law. European law and international law take precedence (in particular social security agreements), but also deviating regulations in other books of the Social Security Code or in laws that apply as its special parts until they are classified in the SGB, § 37  sentence 1, § 68  SGB ​​I. For example, under certain circumstances, social assistance can also be paid to Germans who are abroad, § 24  SGB ​​XII.

social insurance

Sections 1–6 SGB IV contain special provisions for social insurance . The “compulsory insurance and eligibility” for a posting abroad are based “insofar as they require employment or self-employment ”, according to whether the employment or self-employed activity takes place within the scope of the Social Security Code; in the other cases, the territoriality principle remains, § 3  SGB ​​IV. Furthermore, the regulations on the compulsory insurance and the insurance entitlement for employment or self-employment under German law also apply if the person concerned works abroad for a limited period (so-called broadcast ) . Conversely, employees or self-employed people are not subject to German social law if they are posted to Germany for a limited period ( radiation ). The time limit can result from the nature of the employment or activity or from the contract. Broadcasting and radiation are exceptions to the place of employment principle of Section 3 SGB IV. Here, too, supranational and interstate law take precedence, Sections 4–6 SGB IV . As this becomes more common, the importance of these rules is waning.

In addition, there are provisions that are owed to the particular interests of the respective branch of social security and which take precedence over the general rules of national law above. But they are also being displaced by supranational and intergovernmental law, in particular by European social law and social security agreements.

  • The rest of payment obligations in accordance with § 16 para. 1 sentence 1 no. 1 SGB V in the statutory health insurance , the principle of cross-border cases. Employees posted abroad and co-insured family members are to be cared for abroad by the employer, who in turn can demand reimbursement of the costs from the health insurance company , Section 17  SGB ​​V. If health care can only be obtained outside the EU, the health insurance company can pay the costs incurred take over, § 18  SGB ​​V. The reimbursement is limited to the amount for a treatment in Germany.
  • The benefit claims against the social long-term care insurance are suspended in accordance with Section 34 (1) No. 1 SGB XI as long as an insured person is abroad. Care allowance continues to be paid during a temporary stay abroad up to six weeks, in kind but only if a caregiver who otherwise care in kind provides, accompanies the patient abroad. This was preceded by a much-noticed ruling by the European Court of Justice .
  • The statutory accident insurance providers have set up voluntary international insurance (AUV), in which entrepreneurs can participate on request, Sections 140–142 SGB VII . The insurance also intervenes if the insurance cover does not or no longer exists in the context of the broadcast or if there is no social security agreement for the posting location and European social law does not intervene. The most important case is the posting to a subsidiary with a foreign employment contract while the domestic employment relationship is suspended. Accident insurance benefits are  also provided abroad in accordance with Section 97 SGB ​​VII.
  • The statutory pension insurance pays pensions abroad in accordance with §§ 110ff. SGB ​​VI .

international law

Social security is guaranteed as a human right in Article 22 of the United Nations' 1948 Universal Declaration of Human Rights . It states: “Everyone as a member of society has the right to social security and the right to enjoy the economic, social and cultural rights through domestic action and international cooperation, taking into account the organization and means of each state are indispensable for his dignity and the free development of his personality. ”The domestic law of the social security systems is overlaid by international law and - in system theory terms -“ programmed ”. This means that human rights and other conventions, recommendations and certain international treaties are “declarations of principles” and “legislative mandates” to shape national social law. They can be found in resolutions and treaties of the United Nations and its specialized agencies , in particular in the International Labor Standards (“International Labor Code”) of the International Labor Organization (ILO) as well as in the European Social Charter of the Council of Europe from 1961.

The importance of international law for social law has become particularly apparent through the entry into force of the UN Convention on the Rights of Persons with Disabilities (UN-CRPD), which was implemented into national law by the Federal Participation Act 2016. In addition, the UN-BKR is to be used "as an interpretation aid for determining the content and scope of the fundamental rights".

The junctions of the social security institutions are partners for insurance, entrepreneurs, other social service providers and all other bodies to carry out international agreements in the area of social policy, to the extent this is determined by supranational or state law (German Liaison Office for Health Insurance - International, § 219a  SGB V, each The statutory pension insurance provider is the liaison office, Section 127a  SGB ​​VI; German Liaison Office Accident Insurance - Abroad, Section 139a  SGB ​​VII).

European social law

The European social law is a supranational special law for cross-border situations within the European Union . The EU is a legal and economic union, not a social union. The fundamental freedoms of Union law (free movement of persons , free movement of goods , freedom to provide services , free movement of capital and payments ) serve to realize the internal market. For social law cases, Art. 45 ff, 151–161 TFEU relevant. A separate European social security law with its own social administration was not established. Instead, they limit themselves to coordinating, standardizing and harmonizing the social security systems.

Regulation (EEC) No. 1612/68 was created for the free movement of workers. Regulation (EEC) No. 1408/71 and Implementing Regulation (EEC) No. 574/72 have been in force for migrant workers since 1971 . Since May 2010 these have been replaced by Regulation (EC) No. 883/2004 and the Implementing Regulation (EC) No. 987/2009 for Union citizens. Regulation No. 1408/71 continues to apply to non-EU citizens.

However, other areas of social security also need to be regulated. In particular in the statutory health insurance, the question of the export of services as a result of the freedom to provide services has been discussed. The compulsory membership of the entrepreneurs in the commercial professional associations was also measured against European law. In the law of the basic security, the question had to be clarified whether it was compatible with Union law to exclude EU foreigners from the granting of livelihood benefits. In connection with child benefit, it was discussed whether there would be an “immigration into the social systems”, which could speak in favor of excluding certain facts. In 2013, the EU Commission came to the conclusion that the thesis regarding the enlargement of the EU to include Romania and Bulgaria in 2007 could not be substantiated.

International social law as a science

Hans F. Zacher's Munich project group 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 more recent discussion has dealt with the effects of globalization and extends the validity of social standards from the national to the international level. Human rights violations by private actors are increasingly leading to a debate about the enforcement of social rights in the international and transnational space.

literature

Textbooks and manuals

Domestic and international law

European social law

  • Eberhard Eichenhofer: Social law of the European Union . 7th revised edition. Erich Schmidt Verlag, Berlin 2018, ISBN 978-3-503-18152-0 .
  • Maximilian Fuchs (ed.): European social law . 7th edition. Nomos, Manz, Helbing Lichtenhahn, Baden-Baden, Vienna, Basel 2018, ISBN 978-3-8487-4305-6 .
  • Görg Haverkate, Stefan Huster: European social law. An introduction . Nomos, Baden-Baden 1999, ISBN 3-7890-5907-2 .

Web links

Individual evidence

  1. ^ Stefan Muckel , Markus Ogorek : Social law . 4th edition. CH Beck, Munich 2011, ISBN 978-3-406-62637-1 , before Section 19, marginal no. 1 .
  2. ↑ 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]).
  3. ^ A b Eberhard Eichenhofer: Social law . 10th edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155320-2 , Rn. 86 .
  4. ^ Stefan Muckel , Markus Ogorek : Social law . In: Grundrisse des Rechts . 4th, revised edition. Beck, Munich 2011, ISBN 978-3-406-62637-1 , § 19 Rn. 13 .
  5. ↑ ECJ, Case C-160/96, judgment of March 5, 1998 , Slg. 1998 I-00843, ECLI: EU: C: 1998: 84 - Molenaar.
  6. ↑ Voluntary international insurance . In: DGUV. Retrieved February 10, 2019.
  7. ↑ Universal Declaration of Human Rights , General Assembly resolution 217 A (III) of December 10, 1948, Art. 22.
  8. ^ Eberhard Eichenhofer: Social law . 10th edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155320-2 , Rn. 75-81 .
  9. ↑ BVerfGE 128, 282 Rn. 52f. with further evidence.
  10. ^ Stefan Muckel, Markus Ogorek: Social law . 4th, revised edition. CH Beck, Munich 2011, ISBN 978-3-406-62637-1 , § 21 Rn. 4 .
  11. ↑ 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 .
  12. ↑ 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. ECLI: EU: C: 2009: 127. March 5, 2009, accessed January 31, 2019 .
  13. ^ Frank Schreiber: Equal treatment under Union law when receiving unemployment benefit II without right of residence? Comment on ECJ, judgment of 11/11/2014 - Case C-333/13 - Dano . In: info also . No. 1 , 2015, p. 3 ( nomos.de [PDF]).
  14. ↑ 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]).
  15. ↑ Roland Derksen: No social assistance or basic security for jobseekers for EU foreigners with a right of residence according to Art. 10 Regulation 492/2011 on the free movement of workers within the Union? In: info also . No. 6 , 2016, p. 257 ( nomos.de [PDF]).
  16. ^ Susanne Grüter: Criminal child support businesses - cities fight against organized fraud. In: Deutschlandfunk. January 24, 2019, accessed on January 30, 2019 (German).
  17. ↑ Infringement proceedings: EU takes action against Austrian child benefit rules . In: The time . January 24, 2019, ISSN  0044-2070 ( zeit.de [accessed January 31, 2019]).
  18. ↑ Hendrik Kafsack: Study by the EU Commission: Poverty immigration to Germany not proven . October 7, 2013, ISSN  0174-4909 ( faz.net [accessed January 30, 2019]).
  19. ↑ New Max Planck Institute for Foreign and International Social Law . In: Social Progress . tape 31 , no. 8 , 1982, pp. 189 , JSTOR : 24508567 (side lights).
  20. ^ Eberhard Eichenhofer: Globalization and international social law . In: Social Progress . tape 60 , no. 10 , 2011, p. 215-221 , JSTOR : 24513673 .
  21. ^ Gunther Teubner : The anonymous matrix: on human rights violations by "private" transnational actors . In: The State . tape 45 , no. 2 , 2006, p. 161–187 , urn : nbn: de: hebis: 30-13296 (reprinted in: Wilfried Brugger, Ulfried Neumann, Stephan Kirste: Legal Philosophy in the 21st Century. Suhrkamp, ​​Berlin 2008, ISBN 978-3-518-29494-9 , Pp. 440-472.).
  22. ^ Andreas Fischer-Lescano , Kolja Möller: The struggle for global social rights. The roughest would be tender . Wagenbach, Berlin 2012, ISBN 978-3-8031-3641-1 .
  23. ↑ Wolfgang Kaleck , Miriam Saage-Maaß: Transnational companies in court: About the endangerment of human rights by European companies in Latin America . In: Writings on Democracy . tape 4 . Heinrich Böll Foundation, Berlin 2008, ISBN 978-3-927760-78-3 ( boell.de ).
  24. ^ Marc-Philippe Weller, Luca Kaller, Alix Schulz: Liability of German companies for human rights violations abroad . In: Archives for civilist practice . tape 216 , no. 3 , August 1, 2016, ISSN  0003-8997 , p. 387-420 , doi : 10.1628 / 000389916X14646106714428 ( ingentaconnect.com [accessed February 21, 2019]).