Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter S.10: Social protection and private international law

Eberhard Eichenhofer

Social protection is a major objective of modern legislation, which accordingly has a far-reaching impact, not only on substantive legislation, but also on private international law. This influence becomes evident in the context of various practical problems. However, the social protective strand of private international law has yet to assume a clearly elaborated and adequately identified position within theoretical discussion. The main discussion is found in German and French doctrine.

I. Contentious topics

1. Social policy and private law

Social protection is not only a basic, all-encompassing aim of today’s public policy, but also arises in various practical contexts, including private international law. As all modern societies, to the extent they are part of the United Nations legal system, are legally established on the basis of universally guaranteed human rights (→Human rights and private international law), national legislation of the entire world is expected to foster the personal freedom of each individual and at the same time to guarantee social welfare and social security to each individual. This is irrespective of divergent content and aspiration of national legislations.

Personal liberty is expressed in the various institutions of private law, such as contract, property, tort, family and succession. Social aims are to be promoted by the structures of social welfare and social security, which are to emphasize the elementary social human rights to which each individual is also entitled. These social human rights rank equally with civil human rights, so that both types of right have to be mutually compatible and at the same time internationally effective. This is to be achieved by means of private international law.

2. p. 1648Three dimensions of interrelations between social protection and private law

Even though private law and social protection are embedded in different legal institutions and driven by different normative imperatives, neither institution is entirely isolated from the other. On the contrary, private law and social protection are deeply interrelated and these relations can be elucidated in different patterns. As social protection sets limits to private law and is based above all upon private law institutions, private international law rules also pursue an important role in the normative context of social protection.

First, private law and social protection can concur with regard to their legislative framework. For example, the protection of workers against the physical and economic risks deriving from work is governed by both labour and social security law. By the same token, the minimum level of subsistence for victims of →torts and family members is to be safeguarded by both private family or tort law and by social security and social welfare law.

Second, private law relations underlie a substantial series of entitlements to social security benefits. For instance, the social protection of widows depends on a pre-existing, valid marriage with the deceased insured person. If a social insurance system delivers services or payments to a tort victim, the question arises whether the victim’s right to compensation by the tortfeasor is transferred on the basis of a →cessio legis to the social insurance body, as the burden of compensating the victim must and has been borne by the public institution. Accordingly, it is appropriate to grant the right to compensation against the tortfeasor to the institution, which not only must but also has effectively secured the victim’s compensation.

Third, private international law provides a conceptual framework for choice-of-law rules, helping to explain international social security law. For EU Member States this law was created in 1959 by the EU’s supranational legislation, or more precisely Regulations 3 and 4/58 (Verordnung Nr. 3 über die Soziale Sicherheit der Wanderarbeitnehmer, [1958] OJ 30/561, and Verordnung Nr. 4 zur Durchführung der Verordnung Nr. 3 über die Soziale Sicherheit der Wanderarbeitnehmer, [1958] OJ 30/597 (both only available in Dutch, French and German)), which were the first substantive legal provisions enacted within the Community. These provisions were established by the European Council in order to fulfil the requirement, enshrined in art 51 EEC Treaty (Treaty of 25 March 1957 establishing the European Economic Community, 294–8 UNTS), under which the EEC was committed to establishing a multilateral framework of choice of law on a Community law basis and to coordinating social security provisions so as to safeguard acquired social security rights for those exercising the fundamental freedoms of the EU, in particular freedom of movement. These European laws harmonize the choice-of-law rules among the social protection legislation of all Member States and they establish harmonized rules on the coordination of welfare and social security benefit rights and commitments. EU social security coordination protects the vested rights (→Vested rights theory) in social security as it facilitates intra-EU mobility and guards against any coincidental loss of accrued rights to social protection.

3. Prospect for further analysis

The following observations address the common features of private international law and social protection (II.), analyse the preliminary questions of private international law for social welfare or social security law (III.) and, finally, illustrate the conceptual impact of private international law on international social security law (IV.).

II. Common tasks and positions

1. Protective goals of private and social protection law

While social welfare and social security law have a protective strand, this objective can also be identified within private law, in that private law strives for deepening social justice. Private law legislation on employment seeks to afford substantive protection to each employee. Employment laws were specifically framed to establish fair labour standards, ie standards sufficient to protect the worker health and safety, participation in management of the enterprise and a fair remuneration for their work. This means in the context of employment law that the employee is perceived as the weak party, requiring substantive protection against the deemed stronger party, the employer.

The same tendency is apparent in family law, where the intention prevails in legislation p. 1649on alimony or maintenance among actual or former family members to assist the needy party, that is generally speaking the dependent spouse (often the wife) or children and somewhat infrequently the parents. The same protective strand becomes apparent in the private law context, in that family law deals with economic inequalities and imbalances and seeks to strengthen the capabilities of the persons in need.

Tort law also deals with social protection of the victims of unlawful acts or verified risks. Thus those indulging in a risky investment may be held liable to compensate the losses caused to the victims. The principal intention of tort law is to find satisfying solutions from the victim’s point of view: as the victims render a sacrifice and bear the consequences of the outcomes of unlawful or risky acts, it is for the law to protect and support them.

2. Similarities to determine the connecting factor

These similarities between private law and social protective law also find their expression in private international law. The choice-of-law rules of both branches of law are based on the same connecting factors. While not identical, the choice-of-law rules for both employment and social security law are largely based on the same principles, in that both are driven by the lex loci laboris rule that the workplace is the decisive →connecting factor.

The connecting factor in family law as well as in social welfare law is the domicile or habitual residence (→Domicile, habitual residence and establishment) of the beneficiary, based on the lex domicilii rule. This connecting factor is justified by the argument that the beneficiary’s need is to be satisfied in the social context in which these needs arise. In the context of international tort law, the victim’s interest in adequate compensation finds its expression in the application of the law of the place where the victim actually suffered the loss or where the damage occurred (eg art 4(1) →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40)).

Thus speaking more generally, the protective strand of private international law is translated into connecting factors for choice-of-law rules. They have to ensure that the protective function of the applicable law can be achieved by taking into the fullest possible account all circumstances stemming from the sphere of the protective intention of the applicable law.

3. Preferential law approach

A further component of social protection by means of private international law is associated with the so-called ‘preferential’ law approach. Originally implemented in international tort law, this approach intends to give the victims of torts the most generous compensation ever to be acquired under the legislation of the competing states. Today, the preferential law approach is a key element in international contract law aimed at achieving an optimal protection for both workers and consumers under the rules of international employment and consumer law (arts 8 and 6 Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations))). The overall purpose of these rules is to give to the weaker party the privilege of being treated on the basis of the most favourable legislation, regarded as potentially applicable law.

In the context of the coordination of European social security schemes, the preferential law approach is also broadly acknowledged on the basis of consistent case-law over decades (Case C-24/75 Teresa and Silvana Petroni v Office national des pensions pour travailleurs salariés (ONPTS), Bruxelles [1975] ECR 1149; Case C-352/06 Brigitte Bosmann v Bundesagentur für Arbeit – Familienkasse Aachen [2008] ECR I-3827; joined Cases C-611/10 and C-612/10 Waldemar Hudzinski v Agentur für Arbeit Wesel – Familienkasse (C-611/10) and Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach – Familienkasse (C-612/10) [2012] ECR I-339). In the context of social security coordination, the preferential law approach is justified on the rationale that EU coordination has always and necessarily been a benevolent and never an adverse influence on beneficiary rights.

The preferential law approach aims at enforcing by means of choice-of-law rules the substantive social values that social law is committed to. The approach is a specific response under private international law to strengthen and elaborate the protective element that social p. 1650security law is founded upon. It has to create choice-of-law rules which give the fullest possible protection of the weaker party, which is deserving of (merits) protection under the express assumptions of the legal programme the applicable legal matter is committed to pursue. Thus, the preferential law approach makes a true contribution to social purposes in private international law.

III. Preliminary issues

1. Preliminary issues regarding social welfare or security law

As social protection is based on private law institutions, private international law also has to contribute to the determination of social legal entitlements. A telling example relates to the issue of whether and to which extent the spouses of a polygamous →marriage are entitled to widow’s benefits on the death of their insured husband, and to health care where married couples are jointly entitled to health insurance on the basis of the employment of one working spouse. Comparable issues arise in relation to marriages regarded as lawful under the law of one country and as unlawful under the law of another (Federal Constitutional Court of Germany (BVerfG), 23 November 1982, 62 BVerfGE 320, 322). The same problem is to be found in unemployment insurance, where it is common to disqualify unemployed persons if their unemployment stems from an industrial dispute. This exclusionary rule is an issue if a posted worker becomes unemployed as the result of an industrial dispute originating in a foreign country. Finally it must be asked whether a →cessio legis in favour of a social insurance administration could ever become effective as a right of the beneficiary under foreign tort law, where the lex causae does not permit transfer of the right to third parties. This issue is to be resolved on the basis that, due to the administration’s responsibility to compensate for the consequences of tort resulting in damage, the transfer of the right must be determined by the law applicable to the administrations’ actions. In all these cases, the social administration is confronted with preliminary private international law issues (→incidental (preliminary) questions), but it remains unclear how these issues are to be resolved.

2. General rule: private international law also applies within social protection law

Section 34 German Social Code I (Erstes Buch Sozialgesetzbuch (SGB I) of 11 December 1975, BGBl. I 3015, as amended, henceforth SGB I) provides for a relatively general rule on how to deal with preliminary issues. Where in international cases a social security entitlement under German law depends on the existence of a family relationship, private international law determines the law applicable to the family relationship. If the relationship is governed by foreign law, it will be treated as if established under German law provided it is compatible with the corresponding family relationship under German law.

This provision articulates a profound insight into the interrelation of private international law and social protection law. It may be generalized in at least two directions. First, the underlying principle of the provision is restricted not only to international family law, but has to be extended to all preliminary private law relations. Second, as implicitly respected by many countries (Cour d’appel de Chambéry [1962] Rev.crit.DIP 496; Din v National Assistance Board [1967] 1 All ER 750 (QB); Cour de Cassation [1958] Rev.crit.DIP 110; Law Commission, Family Law Report on Polygamous Marriages (Law Com No 42, 1971)), the provision cannot be confined to German law, but rather should be accepted as a general and universal principle.

3. Substitution and adaptation

When in private international law a legal relationship under foreign law is conceived as equivalent to the corresponding relationship under domestic law, in private international law this operation is termed →substitution. This concept is not relevant within the framework of →choice of law, but has a role to play in the context of the application of substantive law. Substitution concerns the replacement of a legal institution of the forum by a comparable institution of a foreign state.

Each act of substitution is based upon on a comparative analysis of the laws of two states. If the comparison can elucidate the equivalence of the compared institutions in the light of the provision to be applied, then a substitution may and will be effected. If the comparison p. 1651reveals a disparity, then rather than substitution an adjustment (→Adjustment/Adaption (Anpassung)) takes place.

How those operations proceed may be illustrated by referring to the examples previously discussed. If an industrial dispute under foreign law was also regarded as lawful under domestic law, the dispute would lead to the same consequences in domestic unemployment insurance regarding waiver of the beneficiary’s rights by virtue of a substitution. However, if a widow’s pension after death of the insured husband is based upon the assumption that he could only have one surviving wife at any time, then a polygamous marriage allows for no substitution as it is not equivalent to a monogamous marriage. Thus, due to lack of equivalence, an adaptation is to be considered. Adaptation can be found in specific social security law provisions. Under § 34 II SGB I the same rule applies to bilateral social security treaties between Western countries as to countries where polygamous marriages are lawful. The solution treats all deceased married husbands alike, so that each widow is entitled to a pension, while the amount of the pension results from a division of the allotted sum in equal shares. To combat →dépeçage, divergent legal provisions on the effects of a →cessio legis are to be circumvented by the determination of an all-embracing statute. EU law rules integrate both social security and tort law (art 85 Coordination of Social Security Systems Regulation (Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, [2004] OJ L 166/1) = art 19 Rome II Regulation). This means the provision in the tort law statute on the invalidity of a cessio legis is irrelevant if the prevailing social security statute provides for a cessio legis on the right deriving from tort. This can be justified, as the social security administration must and does compensate the losses induced by tort.

IV. Conceptual similarities between private international and international social protection law

1. Choice-of-law rules versus principle of territoriality

The conceptual framework of private international law also helps to shed light on the principles and rules governing international social security law. Social security law is frequently understood as the result of the ‘principle of territoriality’. Regarding this assumption, the international scope of national law stems from the territorial restrictions on the state power imposed by the international order. According to this idea, any fact and person is relevant for national social policy to the extent they are addressed by state action. As such facts and persons can only exist within a state’s territorial limits, they only become relevant for national social policy when occurring within the borders of a given state.

However, this theory is profoundly misleading. The international scope of national social policy cannot be equated with the limits to national state power. Rather it is based on normative principles determined by the international community through international cooperation and coordination and established by international law. Seen from this perspective, international social security law can be understood as a system of choice-of-law rules, which is built upon similar structures as private international law, in that both branches of international law employ choice-of-law rules to determine the international scope of national law. These norms single out specific branches of law with a connecting factor to determine the applicable national law. To identify the content of the branch of law referred to in choice-of-law norms, the methods of →classification qualification are used. To understand the main structure of international social security law, the conceptual framework of private international law is thus helpful, as it makes key elements of this branch of international law understandable.

2. Differences between the choice-of-law rules

A profound difference may be noted between private international and international social security law with regard to the legal character of the choice-of-law rules. Whereas private international law is built upon multilateral choice-of-law rules, the respective rules in international social security law are unilateral in nature. From this difference it follows that only private international law judgments can be based upon foreign law, whereas, in the context of social administration, courts and authorities are bound to the application of their own law.

This difference can be explained by the divergent functions of the law applied in private and public law. Whereas a private law case can be assessed in the light of the universal plurality of p. 1652existing private laws and the judge is expected to find a solution on the basis of the most appropriate national law, in public administration the applicable law is determined by the state, which creates the administration, and even by reference to various national welfare and social security regimes worldwide.

3. Rules of equivalence as alternatives to universal choice-of-law rules

Despite the unilateral character of international social security law, it is not ultimately isolated from the world. This is because international social security law has developed an alternative to unilateral choice-of-law rules, so-called rules of equivalence, which help to integrate foreigners and foreign facts and legal relations into the ambit of a state law. This instrument is termed in private international law →substitution or adaption →(Adjustment/Adaptation (Anpassung)), and it leads to the application of a given state law, whereas the conditions of this law are fulfilled not only by local but also by foreign data. Rules of equivalence open the national legislation for foreigners and foreign elements, facts, relations and vested rights. They provide for antidiscrimination rules (→Antidiscrimination) regarding the →nationality of a covered person, which generally is entirely irrelevant for social protection (arts 4 Coordination of Social Security Systems Regulation). Further examples for a rule of equivalence are provisions on the export of benefits in cash (art 7 Coordination of Social Security Systems Regulation), the totalization of periods of coverage (art 6 Coordination of Social Security Systems Regulation) and provisions giving access to services in kind (arts 17–20 Coordination of Social Security Systems Regulation). The latter legal effect of getting access to services in kind results from regarding membership in a national system of social protection as equivalent to the protection in the system of the Member State where the protection is considered. For a number of years under art 5 Coordination of Social Security Systems Regulation, the principle of equivalence has been exposed as a general principle of international social security law. In the terminology of private international law this rule is dealt with in the concepts of substitution and adaptation.

V. Conclusion

Social protection and private international law have much more in common than the conventional wisdom recognizes. There are substantial similarities in choice-of-law rules, interdependencies based on preliminary relations as well as substantial conceptual analogies. Deeper examination of the interrelations helps to reveal social protection as an overall feature in modern law, as well as to elucidate the common targets and principles of the various branches of international law.

Literature

  • Olaf Deinert, Internationales Arbeitsrecht (Tübingen 2013);

  • Willy van Eeckhoutte, International Encyclopaedia for Social Security Law (Kluwer Law and Taxation Publishers 1994);

  • Eberhard Eichenhofer, Internationales Sozialrecht und Internationales Privatrecht (Nomos Verlagsgesellschaft 1987);

  • Eberhard Eichenhofer, Sozialrecht der Europäischen Union (5th edn, Erich Schmidt 2013);

  • Charles Freyria, ‘Sécurité sociale et droit international privé’ [1956] Rev.crit.DIP 409;

  • International Labour Office (ILO), Social Security and the Rule of Law (International Labour Office 2011);

  • Kurt Lipstein, ‘Conflicts of Laws in Matters of Social Security under the EEC Treaty’ in Francis Geoffrey Jacobs (ed), European Law and the Individual (North-Holland 1976) 55;

  • Dieter Martiny, Unterhaltsrang und -rückgriff (Mohr Siebeck 2000);

  • Bernd von Maydell, Sach- und Kollisionsnormen im internationalen Sozialversicherungsrecht (Duncker & Humblot 1967);

  • Guy Perrin, ‘Les fondements du droit international de la sécurité sociale’ [1974] Droit social 479;

  • Alexandre Pilenko, ‘Droit spatial et droit international privé’ (1953) 5 Jus Gentium – Diritto Internazionale 34;

  • Rolf Schuler, Das internationale Sozialrecht der Bundesrepublik Deutschland (Nomos 1988);

  • Klaus Vogel, Der räumliche Anwendungsbereich der Verwaltungsrechtsnorm (Metzner 1965);

  • Jean Wiebault, ‘Le droit de la sécurité sociale et la notion du conflict de lois’ [1965] Droit social 318.