Year:    2009

Author:    Hufen, Friedhelm

Die Verwaltung, Vol. 42 (2009), Iss. 3 : pp. 405–437

Abstract

The essay deals with the existing separation of the German Sozialgerichte (courts for social security law) and administrative courts and their respective procedural laws which has been debated in Germany for many years. The article argues in favour of a comprehensive discussion of the issue whether or not their separation is justified or even required by the needs and functions of modern social welfare and security legislation, and seeks to move away from a discussion that examines purely formal aspects, such as costs and the flexible assignment of judges. To do so, it examines the main arguments for the status quo which, upon closer examination, turn out to be unconvincing. Separating the jurisdictions is not required by the differences that exist in the respective procedural laws, and also ignores the existence of common principles. Beyond that, the detachment is detrimental to the integrative commitment of social welfare legislation to constitutional law, to the consistent resolution of cases involving European Union law, and to the principled distance between the courts and the systems of social security that they control. Furthermore, the separation of the jurisdictions has led to a different anthropological premise and to a separate development of social welfare legislation and general administrative law. In light of the changing demographic background, the overlapping problems of social welfare and security (such as family benefits and risk-management for large population groups) cannot be solved by additional segregation and specialisation, but only by improved integrative approaches. Both sides stand to benefit from reintegration.