Judicial Review of Foreign Administrative Action in Germany

Constitutional right to social security

This special issue explores how national courts review foreign administrative acts within the EU’s integrated administration framework. It examines whether and how courts engage with transnational administrative acts arising from horizontal cooperation between Member States in fields such as taxation, migration, pharmaceuticals, and social security. While principles, such as territoriality and mutual trust, have historically constrained judicial review of foreign acts, recent case law from the Court of Justice of the EU suggests an evolving approach that mandates judicial scrutiny in certain cases to safeguard the right to an effective remedy under Article 47 of the Charter of Fundamental Rights. Through a comparative analysis of national court practices in six Member States (Germany, Greece, Italy, Portugal, Sweden, and France) this study identifies significant disparities in judicial engagement: some jurisdictions actively review foreign acts under EU law while others remain reluctant to do so. The findings highlight gaps in judicial protection and the emerging influence of mutual recognition and sincere cooperation principles. It concludes that while national courts are beginning to acknowledge their role in reviewing transnational administrative acts, inconsistencies in approach and limited case law suggest the need for further legal development and research to ensure effective judicial protection within the EU's integrated administration system.

The Court of Justice of the European Union faces a wide variety of human rights decisions. In common with national courts, it has to ensure that the actions of the European Union administration and legislature comply with human rights. These human rights are found in the general principles of Community law, including, inter alia, those of the European Convention of Human Rights, in addition to the EU Charter of Fundamental Rights and Freedoms. When doing so, the CJEU may find that it is judging not only the actions of the institutions of the European Union, but also actions of the administration and legislature of the Member States as they implement provisions of EU law, or act as agents of the EU administering EU law. In addition, the CJEU will adjudicate on actions of the Member States when they are acting within the sphere of European Union law. This can occur when Member States derogate from other provisions of EU law on the grounds of protecting human rights, or where Member States fail to implement European Union law provisions that either directly or indirectly protect human rights. This diverse nature of the human rights jurisdiction of the CJEU poses unique problems for human rights adjudication in the EU. The Court is at one and the same time protecting human rights from abuse by its own measures and policing the activities of its Member States. Moreover, the lines between these roles are blurred. For the CJEU to provide a human-rights compatible interpretation of the provisions of a Directive, for example, not only restricts the actions of the EU legislature, but also limits the actions of Member States. In addition, when the CJEU takes on the role of policing the actions of Member States, it does so within the context of the ECHR, given that all Member States, and potentially soon the EU itself, are signatories to the ECHR and the provisions of the ECHR are sources of general principles of Community law as well as being mirrored in the first Chapter of the Charter. Yet for the CJEU to perform the same function as the European Court of Human Rights would lead to replication of roles, as well as cause problems for the CJEU’s assertion of the supremacy of directly effective EU law over national law which would appear to run contrary to the margin of appreciation granted by the ECtHR to its signatory States. This chapter aims to provide the groundwork for developing a theory of human rights adjudication for the CJEU, looking specifically at the complexities that arise when deciding cases that require control over actions of Member States. It builds on consensus found in the literature calling for the need for the CJEU to be sensitive to competing requirements of consensus and divergence in the protection of human rights, drawing on the constitutional pluralism underpinning the EU. It will first explain the need for both uniformity and diversity in human rights protections in the EU. It will then explain how these needs can best be met through a dialogue theory of human rights adjudication, with Article 267 facilitating the provision of varying degrees of authority to determine rights-issues to either the CJEU or the national courts. The final section discusses the factors that should influence whether a rights-issue is more suited for resolution by the CJEU or national authorities, building on Weiler’s theory and explaining its precise application through a series of examples drawn from recent case law.

This Special Issue aims at interrogating the judicial and extra-judicial challenges that arise from the EU complex administrative framework, which can be characterized as both multi-level—arising from the vertical cooperation between EU and national authorities—and cross-level—arising from horizontal cooperation between national authorities themselves. It starts from the premise that there may be decisions affecting natural and legal persons which cannot be easily reviewed judicially, whereas in extra-judicial cooperation, the lack of common standards or practices across Member States may undermine the effectiveness of EU policies and objectives. This Special Issue focuses on various mechanisms of horizontal and vertical cooperation, such as regulatory patterns giving rise to transnational administrative acts and mutual recognition systems, case studies of composite procedures in the field of the genetically modified organisms regime and information sharing in asylum policy, as well as multi-level inspection activities for the enforcement of EU law. It further complements the analysis on the judicial challenges arising from those cooperative structures with an examination of extra-judicial avenues of control in the EU administrative framework, namely the “EU queries” process and the cooperation of ombud offices, as well as the audit of the EU budget. This Special Issue reflects on ways to overcome the current challenges of, and seeks to prompt further research on, the multi-layered EU system of administrative cooperation.

Does ‘the’ social security take sufficient account of women? Are its protection schemes sufficiently aimed at safeguarding women’s interests? These are the questions I was invited to answer for this handbook on social security law. At the same time I was asked to adopt an unorthodox approach, one that is more reflexive than strictly legal. This request is not without complications. To begin with, there is the normativity of the questions at hand. The question whether and, if so, when protection schemes take sufficient interest in the position of a certain target group is subjective, and people who write about this usually begin or end their discourse with a personal standpoint. One can wonder whether this is appropriate in a book that is supposed to be a handbook. The second complication has to do with the combination of the target group (women) and the concept of social security. The legal concept of social security was conceived at a time when the context of labour and social risks was very different from what it is today. This was the case at the time the concept was first ‘invented’, and it was no different shortly after WW II when social security was implemented as a fundamental right in the Universal Declaration of Human Rights. In order to do justice to the request, I must look for a definition of social security that is broader than the one that is generally used. The third complication is related to the legal scope. The question must be answered in a book on EU law, which means that the social security schemes in all EU member states might be relevant. That element makes this task extremely complicated if not impossible to fulfil. After all, the EU is now made up of 28 member states, each with its own social security scheme. And a description of 28 schemes would be not only tedious, but also far beyond the scope of one chapter. Of course, one could try to tackle this complication by approaching the member states not as separate entities but as members of a welfare state family. This approach is not without its risks, however. For one thing, the original typology method (i.e. that developed by Esping-Andersen) has met with strong criticism, especially from a gender perspective (I deal with this issue later on). A second possible approach is from the perspective of EU non-discrimination law. A strong position of women in the labour market and, within this context, the equal treatment of men and women have always been goals of EU social policy, practically since the signing of the Treaty of Rome in 1957. As a result, we now have a vast body of EU law, which is generally referred to as equal treatment law (hereinafter ETL). The period of hard law instruments (roughly 1960-90) was succeeded by a period in which EU social policy was dominated by soft law. In both periods, the topic of women and social security (hereinafter ‘women and…’) remained an important focus of EU policymakers. In this chapter, I deal with the two periods successively. This chapter is organized as follows. I first present a theoretical framework in the form of a few notions that are central to this theme (section 2). In section 3, I describe the development of EU ETL and its impact on social security. In section 4, I approach the theme from a broader perspective. In this section, the central notions are gender mainstreaming, and work and family reconciliation policies. In the final section (5), I return to the central question and try to answer it as well as I can. I deal with social security in individual national schemes only incidentally, as examples or in the context of research studies by other academics.

A lot of ink has been devoted to Brexit: when (and if) it will happen, under what terms, and what its legal effects will be. Some have enquired whether Brexit can create an avalanche of investor-state disputes potentially based on the frustration of the investors’ legitimate expectations. This article takes a step back from the current volatility of the ongoing negotiations and addresses a bigger policy question, which has been emerging steadily also in other contexts: what will be the actual interplay between international, EU and domestic laws for the resolution of investment disputes after Brexit? To address this question, this article first examines the Withdrawal Agreement and the new arbitration mechanism that it establishes. Second, it explores the interaction between international and domestic laws, in light of the current developments in EU law, especially the Achmea judgment and the Member States’ Declarations on Achmea, as well as implications for the enforceability of arbitral awards in the UK post-Brexit. The article concludes with the remark that policy makers need to address the current underlying tensions between the three laws of international investment; domestic, EU, and international, by paying due respect to international law.

A lot of ink has been devoted to Brexit: when (and if) it will happen, under what terms, and what its legal effects will be. Some have enquired whether Brexit can create an avalanche of investor-state disputes potentially based on the frustration of the investors’ legitimate expectations. This article takes a step back from the current volatility of the ongoing negotiations and addresses a bigger policy question, which has been emerging steadily also in other contexts: what will be the actual interplay between international, EU and domestic laws for the resolution of investment disputes after Brexit? To address this question, this article first examines the Withdrawal Agreement and the new arbitration mechanism that it establishes. Second, it explores the interaction between international and domestic laws, in light of the current developments in EU law, especially the Achmea judgment and the Member States’ Declarations on Achmea, as well as implications for the enforceability of arbitral awards in the UK post-Brexit. The article concludes with the remark that policy makers need to address the current underlying tensions between the three laws of international investment; domestic, EU, and international, by paying due respect to international law.

EU law has developed a unique and complex system under which both the Union and its Member States can act under international law, separately, jointly or in parallel. International law was not set up to deal with such complex and hybrid arrangements, which raise questions under both international and EU law. This book assesses how EU law has adapted to cope with the constraints of international law in situations in which the EU and its Member States act jointly in relations with other States and international organisations. In an innovative scholarly approach, reflecting this duality, each chapter is jointly written by a team of two authors. The various contributions offer new insights into the tension that continues to exist between EU and international law obligations in relation to the (joint) participation of the EU and its Member States in international agreements. Volume 108 in the Series Modern Studies in European Law

This study summarises the information provided by the Member States in their annual voluntary reports on their experience and progress concerning cooperation on fraud and error in the reference year 2016, as provided for in Decision H5 of the Administrative Commission for the Coordination of Social Security Systems. The Member States’ reports have been analysed with the aim of identifying several elements. First, particular attention goes to the steps taken throughout the year to prevent and combat fraud and error in the field of EU social security coordination. Secondly, the aim of the country reports was to identify specific problems in implementing the EU coordination rules which may lead to, at least risks of, fraud and error. Thirdly, an outline is provided of the steps taken to promote compliance by institutions and healthcare providers with the coordination rules and to provide information to citizens, in the field of benefits in kinds. Fourthly, the report notes good practices, lessons learned and remaining issues or concerns when dealing with crossborder cooperation and information exchange within the framework of Regulations (EC) No 883/2004 and (EC) No 987/2009 on the coordination of social security systems. Fifthly, the report summarises the examples of or proposals or suggestions for measures to improve the overall tackling of fraud and error in the field of social security coordination which National Contact Points (NCPs) can operationalise without the need for changes to national or EU law. Also some additional remarks, made by a few Member States, are inserted at the end of this report. Finally, the report contains an Annex I (National legislation relevant to preventing and combating social security fraud and error within the framework of Regulations (EC) No 883/2004 and (EC) No 987/2009 on the coordination of social security systems, including the relevant definitions of fraud and error and penalties and sanctions that apply) and an Annex II (Inventory of bilateral agreements and bilateral cooperation arrangements with other EU or EEA Member States entered into for the purposes of combating fraud and error within the framework of Regulations (EC) No 883/2004 and (EC) No 987/2009 on the coordination of social security systems).

This paper critically analyses EU law on patient mobility, which has developed in the last decade. It covers the European Court of Justice case law applying internal market rules to social security coverage of foreign health treatment, its relationship with the EU rules on the co-ordination of social security systems, and the recent attempts at codifying the case law. The most recent EFTA Court judgment in the Rindal case, and its potential effects on EU law if the Court of Justice adopts the same reasoning in the pending Elchinov case, are investigated. The aim of this paper is to demonstrate the implications of EU law on patient mobility on national social security systems, namely their autonomy to define the scope of their coverage of health care treatment, and the consequences, within the framework of EU law, of applying certain legal techniques to define their social packages. Special emphasis is put on the new EU Member States and Croatia. It is argued that these states are in a particularly delicate position in relation to EU law in terms of maintaining the financial stability and the social (in terms of solidarity) character of their social security systems. The paper proposes certain solutions to accomplish a twofold objective: improving legal certainty at the European level (thus facilitating the free movement of patients), while, at the same time, respecting the Member States’ freedom to organise their social systems, in order to protect the solidarity on which those systems are based.

The EU has only limited competence to regulate national health-care systems but recent developments have shown that health care is not immune from the effects of EU law. As Member States have increasingly experimented with new forms of funding and the delivery of health-care and social welfare services, health-care issues have not escaped scrutiny from the EU internal market and from competition and procurement rules. The market-oriented EU rules now affect these national experiments as patients and health-care providers turn to EU law to assert certain rights. The recent debates on the (draft) Directive on Patients’ Rights further underline the importance, but also the difficulty (and controversy), of allowing EU law to regulate health care. The topicality of the range of issues related to health care and EU law was addressed, in October 2009, at a conference held in Nijmegen, the Netherlands. The present volume contains inter alia the proceedings of this conference and invited essays. This volume follows the publication of The Changing Legal Framework for Services of General Interest in Europe. Between Competition and Solidarity (M. Krajewski et al., eds., The Hague, T.M.C. Asser Press 2009) and is the second publication in a new series: Legal Issues of General Interest. The aim of the series is to sketch the framework for services of general interest in the EU and to explore the issues raised by developments related to these services. The book is compulsory reading for everyone who is engaged in issues relating to health care and EU law. Johan van de Gronden is Professor of European law at the Law Faculty of the Radboud University Nijmegen, the Netherlands. Erika Szyszczak is a Jean Monnet Professor of European Law ad personam and Professor of European Competition and Labour Law at the University of Leicester, UK. Ulla Neergaard is Professor of EU law at the Law Faculty of the University of Copenhagen, Denmark. Markus Krajewski is Professor of International Public Law, Faculty of Law, University of Erlangen-Nuremberg, Germany.

The action of a taxpayer when trusting in information concerning the content and interpretation of tax law obtained from tax authorities – between the constitutional principle of legalism and the principle of the protection of legitimate expectations

Social Market Economy Is Not an Oxymoron

This article examines the extent to which EU law impacts on the relationship between the sub-national entities of a Member State where these sub-national entities have regulatory powers in the field of social protection. More specifically, it explores whether the criteria relied on in EU law for determining the scope of the circles of solidarity in the relationship between the Member States can also be applied in the context of the relations between the sub-national entities of regionalised Member States. It appears that EU law on the free movement of persons influences these matters, more specifically the European social security coordination system that determines to which national circle of solidarity a person migrating between Member States belongs. Indeed, in its judgment in the Flemish care insurance case, the Court of Justice of the European Union (CJEU) also applied these rules to some categories of persons in a cross-border situation between different regions of a single Member State. This article critically analyses this case law specifically in terms of respect for the regionalised identity of socially devolved Member States. It concludes that this kind of respect requires that in the context of the relations between sub-national entities of a regionalised Member State, the domestic constitutional rules determining the boundaries of circles of solidarity between these entities should, in all circumstances, have preference over the EU rules applicable between Member States.

Introduction: Federalism's Janus Face Elke Cloots, Geert De Baere and Stefan Sottiaux PART I: FEDERALISM IN THE EU'S CONSTITUTIONAL STRUCTURE 1. EU Federalism in 3-D Koen Lenaerts 2. Federalism and Jurisdiction Pavlos Eleftheriadis 3. Federalism, the EU and International Law: On the Possible (and Necessary) Role of Subsidiarity in Legitimate Multilevel Trade Governance Alexia Herwig 4. The Court of Justice as a Federal Constitutional Court: A Comparative Perspective Monica Claes and Maartje de Visser 5. The Dual System of Rights Protection in the European Union in Light of US Federalism Aida Torres Perez 6. Federalism and International Relations in the European Union and the United States: A Comparative Outlook Geert De Baere and Kathleen Gutman PART II: EU LAW AND MEMBER STATE FEDERALISM 7. European Ties that Bind: Political or Cultural? Helder De Schutter 8. Does EU Decision-Making Take into Account Regional Interests? Piet Van Nuffel 9. The Role of Sub-State Entities in the EU Decision-Making Processes: A Comparative Constitutional Law Approach Nikos Skoutaris 10. Autonomous Constitutional Regions in a Federal Europe Joxerramon Bengoetxea 11. The European Court of Justice and the Devolution of Taxation Powers Suzanne Kingston 12. The Impact of EU Law on the Devolution of Social Powers in the Member States Herwig Verschueren 13. EU Law and Language Regulation in (Quasi-)Federal Member States Elke Cloots and Stefan Sottiaux 14. The European Court of Justice and Member State Federalism: Balancing or Categorisation? Elke Cloots 15. The Impact of 'Regional Blindness' on the Italian Regional State Giuseppe Martinico 16. The Spanish State Structure and EU Law: The View of the Spanish Constitutional Court Maite Zelaia Garagarza 17. Economic and Monetary Union: Caught between Brussels and Luxembourg? The Influence of EU Law on Belgian Federalism Case Law Stef Feyen