woensdag 2 oktober 2013

G. Vonk. Law and the Rise of the Repressive Welfare State

Definitieve versie van de lezing van prof. dr. Gijsbert Vonk voor de EISS-conferentie 2013

Onderstaande tekst is inmiddels ook, in licht gewijzigde vorm, verschenen in: European Journal of Social Security, Volume 16 (2014), No. 3, onder de titel: Repressive Welfare States: The Spiral of Obligations and Sanctions in Social Security

Law and the rise of the repressive welfare state

Gijsbert Vonk, g.j.vonk@rug.nl 

This article discusses the trend of introducing increasingly strict obligations and sanctions for social security claimants in the Netherlands, the UK and in Germany. It is argued that this trend should be judged critically because it upsets the balance between rights and obligations for claimants of benefit and may undermine the “elevating function” of social security. Courts play an important role in maintaining the balance between rights and obligations.  The article discusses recent case law in the three countries and refers to a remarkable case at the Czech constitutional court of November 2012 which paves to way to a more fundamental approach to  scrutinize repressive welfare state excesses.

1. Introduction

In our present climate social security fraud has become a true public concern. Individual fraudsters who are caught out are paraded in front of the camera and collectively scorned and ridiculed in the newspapers. People massively report suspected cases of benefit fraud to specially created complaints lines. Politicians from the left and right promise stricter rules and tougher sanctions. If there ever was a time that an improper use of benefit rights was a taboo, now it has become more like a public obsession.

The increasing attention for social security fraud is not an isolated phenomenon, but part of a wider trend which I refer to as the ‘rise of the repressive welfare state’. This is a trend that has been commented upon by several social academics, particularly in Northern America. The uncrowned champion among them is the French sociologist Loïc Wacquant who wrote a stirring account of the changes in welfare state in the United States. The book bears an ominous title: Punishing the Poor.[1] Wacquant argues that in American problems are no longer solved on the basis of a social agenda. Instead the citizen is made fully responsible for his own life and the degree in which he or she can participate in society. Where these policies fail the state reacts with sanctions and criminal measures. In this way the ‘light’ American liberal state has developed a ‘heavy’ substructure to suppress the poor. 

According to Wacquant the repressive wind is blowing over to this side of the Atlantic. Whether or not he is right is of course a question of qualification of the term: ‘repressive’. Whatever can be said about this, the fact of the matter is that many European welfare states witness a pattern of formulating stricter obligations for social security recipients, followed by calls for a hardening of sanctions and a tougher criminal law response. For the purposes of this article , I will discuss such changes in social security law by looking at the situation in three countries, i.e. Germany, Great Britain and the Netherlands (in reverse order). The purpose of this article is the following: 
a.   a.    To describe the spiralling obligations and sanctions in Germany, the Netherland and the UK with reference to legislative developments (section 3)
b.    To interpret these changes with reference to possible explanations and common elements      (section 4) 
c.      To monitor the responses of the judiciary to the repressive trend in the legislation (section 5).

The latter point is of particular importance to this contribution. Our social security systems function under the rule of law. This means that the balance of rights and obligations ideally is subject to an interplay between the legislature, the administration and the judiciary. If the legislator and the administration are focussing strongly on the disciplinary function of social security and neglect the rights of the beneficiaries, it is up to the courts of restore the balance. The more uncompromising the policies are, the more robust and constitutional the response of the judiciary can be expected to be, addressing the needs of the individual and formulating clear limitations. It is interesting to see how and to what extent courts take up this role.

2. Fraud and abuse of benefits rights: birds of a feather

Before starting on the agenda, I shall first give some conceptual clarification.  In order to capture the repressive trend in our welfare states, we  will  deal not only with the question of fraud and the reaction to it but also with the perceived abuse of benefit rights. The concept of ‘abuse of rights’ is quite a murky one. I use it to circumscribe the situation of a claimant who is deemed to be not entitled to benefit because he or she is unwilling to work and participate in the society. It may be argued that mixing up fraud and abuse is unwanted and unjustified because these are two different things. From a legal point of view this is correct. In social security law a distinction can be made between information duties and co-operation duties. If one gives false information in order to gain some financial advantage, this is an offence under criminal law which can be sanctioned by a fines, obligatory community services or a prison sentence. These are punitive sanctions which come under the protection offered by art. 6 ECHR to persons charged with a criminal offence. The same is the case if one withholds information which is relevant for the level of benefit, for example by not reporting earnings or a change in the household situation. Contrarily, if one fails to apply for a job or to agree to do community services, this merely constitutes a breach of an administrative obligation which can only be sanctioned by withholding benefit rights. Such sanctions may hit beneficiaries hard, but they are not part of the criminal law system. 

Nonetheless, while technically speaking fraud and abuse of rights are different things, they also touch upon each other. Both forms of conduct are subject to the same spiral of formulating increasingly stricter obligations and tougher sanctions. More importantly, both operate as boundary markers establishing a line between those who are deserving and those are undeserving of social security support. From the latter perspective there is an interesting grey zone where welfare fraud merges into welfare as fraud.[2] When policies increasingly emphasise personal responsibility, benefit dependency is more easily perceived as somebody’s failure to take up this responsibility. And when such failure is subsequently sanctioned by withholding benefit rights, it easy to see why fraud and perceived abuse of benefits rights are birds of a feather. Both types of behaviour are deemed incorrect, both are followed by negative legal response.

3. Spiralling obligations and sanctions, a tale of three countries


In the Netherlands the first act to step up the obligations and sanctions for beneficiaries was the Wet boeten, maatregelen terug- en invordering Sociale zekerheid 1996. It was felt that various institutions charged with the administration of social security acts underperformed in enforcing social security obligations. The act was supposed to force a break with the past by imposing a duty on the administration of social security to always fully recover every penny of undue payments and to always sanction violations of any obligation by means of withholding benefit payment or imposing fines. 

The act was prepared under the responsibility of the then Secretary of State of Justice, Ernst Hirsch-Ballin, who is a respected professor of constitutional law. On the one hand the act was strict, on the other hand it took into account procedural rights for beneficiaries taken from art. 6 ECHR and various principles of administrative fairness (una via, ne bis in idem, presumption of innocence, the right to remain silent, to translator services, etc.). 

The act gave rise to a system of enforcement governance, including obligations to develop anti- fraud policies, to monitor the progress and to report about this to the Ministry and then to Parliament. With this a whole enforcement bureaucracy evolved, with fraud officers, enforcement specialists and policy managers, partly reporting to the office of the Attorney General. This branch of activity also extends beyond the borders. The Dutch government imposed a ban on the export of benefits, but allowed for the conclusion of international agreements to make such export possible nonetheless, on the condition that the authorities of other countries would submit to the Dutch demands for control and information. All this has to be monitored. Sometime Dutch fraud busting teams are sent out to pay visits to disabled or old age pensioners abroad, often to the great surprise of expatriates who have left the country many years ago. 

Despite the obvious progress made in the field of enforcement[3], in 2011 the Dutch government announced a new act, the Fraud Act, with the idea of drastically rising the fines and in case of re-offence: an exile from the entire social security system. The latter proposal was strongly rejected by the Council of State because in its view it violated various constitutional principles. But this did not deter the government to go ahead with the proposal, with only slight amendments.

In the final version of the Fraud Act adopted by Parliament in 2012, it is possible to cash the fines by fully setting aside the statutory protected earnings level of 90% of the minimum subsistence norm for a period of five years. For social assistance claimants this period is maximum three months. The fines are at least the same as the amount of benefit to be recovered and further increased for re-offenders. This is harsh. When one compares the severity of the sanctions in social security with other sanctions applied in other fields of legislation, such as the Health and Safety at Work Act and the Employment of Foreign Nationals Act, it appears that they are far higher. According to some, social security sanctions have spiralled out control.[4]
In the meantime a steady increase of co-operation obligations can be reported in the field of social assistance. In 2004 the duty to accept suitable employment was replaced by a duty to accept generally accepted employment, a concept which is supposed to not take into account the level of person’s previous employment. Subsequently workfare practices were introduced, made possible by the so called participation jobs which force beneficiaries to work without any wages for the purposes of gaining work experience for a maximum of two years. Then 2012 saw the introduction of a so called maatschappelijk nuttige tegenprestatie. This is a duty to make oneself available for community services in addition to the duty to find employment. The introduction of the tegenprestatie was accompanied by a bombardment of moralistic jargon: the reciprocity principle, everything comes at a price, voor wat hoort wat. [5] Sometimes the tone is more scornful; let them sweep up the leaves, or clear the snow! This language is mostly symbolical. Collecting autumn leaves is a highly professionalised business in the Netherlands, whereas snow clearing is difficult when everything has melted away within 24 hours.

In the meantime patience with beneficiaries who fail to become active and find a job is quickly running out. Despite the fact that under the present legislative system municipalities have been given all the possibilities to impose strict sanctions, politicians think it is not enough. The present Dutch government has announced a new act which centrally prescribes tougher benefit cuts that all local councils must adhere to. In this way the 2012 Fraud Act is going to have a younger brother in the form a Lex Discipline


Great Britain

Moving over to Britain we find a very similar pattern in the legislation as the Netherlands. Here the spiral of obligations and sanctions was kick started by the policies of Tony Blair’s government. The changes have been systematically studied by the Manchester Professor of social policy Peter Dwyer, who refers to them as a process of ‘creeping conditionality’[6], a pattern of formulating increasingly strict benefit conditions, thereby gradually undermining welfare rights for recipients. In social security the conditions mostly affect the unemployed and single parents, but in Dwyer’s observations other areas such as health, housing, education and welfare rights are also affected. 
Anti-fraud policies are also part of the process. The Social Security Fraud Act of 1997 introduced more powers to collect and exchange information which set a system of criminal fines. In lieu of prosecution, the claimant is offered the chance to repay the amount fraudulently claimed along with an additional 30 per cent of the overpayment. These powers and sanctions were increased by the Social Security Fraud Act of 2001 and then again by the Welfare reform bill of 2009. There is now a system of benefits cuts in operation which operates upon the notion of one strike and two strike offences. One strike is for one month benefit withdrawal; with two strikes the claimant faces a much longer period. 

The British policies of conditionality have not altered much under the present coalition government. In 2011 the British government introduced the Mandatory Work Activity, advocated as a chance to develop work discipline and behaviour and to contribute to the local community. Once a claimant is referred to Mandatory Work Activity, participation is mandatory and sanctions apply if a claimant fails to participate without good cause. The placements last for four weeks and for 30 hours a week. There are no wages.



In Germany tougher conditions and sanctions were introduced as part of the systematic overhaul of the social assistance system by the then Schröder government. The overhaul resulted in Grundsicherung für Arbeitssuchende, popularly referred to as Hartz IV (after the architect of the system Peter Hartz), or more technically as Arbeitslosengeld II. This system introduced minimum benefits, strict work conditions and tough sanctions for those not adhering to them. Part of the system is the Arbeitsgelegenheiten mit Mehraufwandsentschädigung (work opportunity with compensation for addition expenses) often referred to as the  ein-Euro-job-scheme. These are additional jobs created for Hartz-IV recipients in the community sphere. The recipients keep their benefit and can earn one or two Euro’s per hour in addition. 

In order to avoid that the  ein-Euro-job-scheme runs contrary to the German constitutional requirements, the activities and the rights of the beneficiaries are well regulated in the law. For example, the work offered must be proportional and suitable for beneficiary. The extent, mode and duration of the work carried out must clearly circumscribed in a public law agreement concluded between the administration and the beneficiary. Health and safety must protected and the person is insured for occupation accidents. The maximum working week is 30 hours.

Hartz IV has been in operation for almost ten years without any substantial changes. Around 2010 some politicians, most notably the CDU Ministerpräsident of Hessen Roland Koch, started a campaign to introduce a general Arbeitspflicht for Hartz-IV recipients. But these voices were silenced by Angela Merkel who remarked in the Bundestag: “Ich glaube, dass die rechtlichen Rahmenbedingungen, was die Notwendigkeit der Arbeitsaufnahme betrifft, eindeutig ausreichend sind[7]”. This was, seemingly, the end of the matter. And yes, the powers to impose sanctions on unwillingness to work included in Hartz-IV are already quite severe, at the minimum a 30% benefit cut going up to a total withdrawal of benefit.  

Finally a short word about fraud policies in Germany. Here the Germans rely on the consistency of the Sozial- and the Strafgesetzbuch which includes powers to collect information and treats information fraud as a criminal offence. If there is any intensification of these anti-fraud measures, these do not come from the legislature, but rather from the administration, particularly die Bundesagentur für Arbeit which continues to discover increasingly large numbers of irregular payments of Arbeitslosengeld II.

4. Background and implications of the new repressive policies

The spiral of obligations and sanctions can be interpreted in various ways. Some will point a the diminishing support among the populous for solidarity with some groups of welfare recipients thus creating a new image, a category of ‘underserving poor’, single parents, long term unemployed, immigrants, etc. Others will argue that the new repressive policies are rooted in the need to reform social security, by making the system more activating and by reducing costs. A more comprehensive explanation comes from the Dutch sociologist Willem Trommel.[8] He points at structural changes which undermine the old welfare state such as globalisation and individualisation and argues that this gives rise to a New Social Governance. This is - in Trommel’s terms - ‘a greedy government’ which is characterized by a state that is desperately trying to restore the social fibre of society. A characteristic of these policies is that the state in trying to mould society into a uniform pattern of values and norms so as to create a responsible civil society from a top down perspective. 

Wacquant makes an equally interesting remark when he points out the role of symbolism of repressive welfare policies.[9] Such symbolism is important from the point of view of legitimacy of state. By constantly pointing the finger at those who are not deserving of our support: the unruly classes, the outcasts, the irresponsible, newcomers to society and worst of all fraudulent immigrants, the state is busy strengthening the bond with the rest of the population, thereby creating a basis for its survival. 

Such theories offer an alternative to the mainstream marketing arguments for tougher obligations and sanctions dished up by politicians. Indeed, there are good reasons for being critical of these mainstream arguments. I mention four. 

First of all, the new policies are not always based upon empirical evidence or rational considerations. For example, the latest Dutch Fraud Act was a response to political pressure, not at all to rising fraud and abuse statistics. In fact, the figures show that these do not increase at all. It is also quite shocking to note how often fraud cases are reported to the press suggesting large scale illegal practices involving millions of Euros damage, while in the end such cases appear simply not exist. Thus in the Netherlands, only twelve Moroccans and Turks appeared to have claimed double child benefit, not a quarter of the relevant population as was earlier suggested by some politicians.[10] Similarly, in Amsterdam after two years of researching address data, it appeared there were only six so called phantom citizens claiming benefits, instead of the hundreds suggested earlier .[11] Remarkably, no politician is ever held accountable for spreading rumours which subsequently prove to be manifestly exaggerated or downright false. 

Secondly, it should be pointed out that the call for higher fines is made on the assumptions of wrongful behaviour which in practice cannot always be upheld. Not all recipients who do not adhere to the rules are intentional fraudsters. As is testified by the contribution in the present volume by there is a difference between intentionally and unintentionally violating obligations (Reindl-Krauskopf), the extent of error may far outreach the extent of fraude (Van Stolk) and suspected fraud is not the same as the real extent of fraud (Van Oirschot). Some people just get lost in the rules or suffer from the events in their life paths which make them unfit to do what is expected of them. Perhaps also for this reason local administrators often find it hard to actually impose the tough sanctions that are prescribed by central guidelines.[12]
Thirdly, new repressive policies can come with an overdose of paternalistic interference which damages the dignity of benefit claimants. Thus, the former Dutch Secretary of State for social affairs Henk Kamp made a serious point describing how social assistance recipients should dress. They are not supposed to show piercings, tattoos, décolletés or belly buttons, let alone heads scarfs or burkas, otherwise they not attractive to employers. But again research has pointed out that in practice it is very hard for social services to actually enforce such instructions borne in the fantasy of some correct politician.[13] In Britain, the press targets for example people who suffer from overweight. No dole for fatties.

Fourthly, the repressive welfare state reforms are so much focussed on discipline and sanctions, that they undermine the balance between rights and obligations, thus exposing the claimants to benefit to unwarranted intrusions of their privacy, the arbitrary decisions of fraud officers and degrading treatment. In the end this may jeopardise the “elevating function” social security is supposed to have for its citizens. For example, in our research into the implementation of the latest Dutch mandatory work activity programme we found out that there are less regulatory guarantees for this type of work than the obligatory community services which must be carried out be detainees. In this way social security and criminal law will become mutually exchangeable areas of government concern. The British government introduced at least a set of quality guarantees for the British Mandatory Work Activity Scheme. There are Internal guidelines which deal not only with working times, health and safety matters, but which also require the work to be beneficial for the development of the claimant, not to go against his personal beliefs or lead to any degrading practices. [14]

5. Response of the judiciary

As was mentioned in the introduction, it is important that new repressive welfare policies operate under the rule of law, which can help to maintain a just balance between rights and obligations for benefit claimants. In this respect it is relevant to monitor the response of the judiciary to these new policies. 

It emerges that the courts are very much in the business of counterbalancing the new sanctions regime, both in cases of information fraud and in cases of suspected abuse. This is not only the case in the Netherlands[15], but also in the UK[16] and in Germany. The red strand of the case law is that each individual case must continue to be judged on the basis of the merits, however strict and standardized the rules may be. When individual circumstances are taken into account very often the conclusion must be that sanctions should be mitigated
Another trend, at least in the Netherlands, is that case law is becoming more constitutional in character, meaning that courts do not refrain from taking a principle stance and derive rules from fundamental rights. One of the reasons for this may be that the basis for the rights in the social security statutes themselves has become so much weakened by constant legislative interferences that courts must almost automatically resort to higher legal norms, in particular human rights standards, as a basis for their decisions. Examples of the more principle case law are the rulings dealing with the powers of the administration to enter the homes of claimants for verification purposes. According to the Dutch Central Appeals Tribunal this is not allowed unless the occupant gives his explicit consent.[17] Failure to do so may not result in any loss of benefit rights, unless there is clear indication that there is something wrong with payments. Typically the Dutch legislature has reacted to this with a new act to grant more powers to the administration to enter people’s homes, but it is questionable whether this attempt is really going to be successful, as the courts will probably remain critical. 

Another interesting strand in case law deals with the question of whether it is allowed to force beneficiaries to accept workfare duties, for which beneficiaries receive no, or reduced earnings. The question arise to what extent this is in line with some fundamental rights, such as the right to work (in particular the freedom of occupation) and the prohibition of slavery and forced labour as contained in several international human rights instruments, such as art. 4 ECHR.
For a long time there were hardly any national or international cases in which concrete decisions of social security administrations to withhold benefit rights were considered to be in violation of any of these rights. The general understanding seems to be that work duties may be imposed as a benefit condition and that withholding benefit rights does not impede someone’s freedom of occupation, let alone constitute forced labour. Up to now this has also been the point of view of the European Court of Human rights. [18]

I have some trouble in accepting the way courts tend to reject outright the relevance of the prohibition to forced labour in social security cases. Firstly, by doing so courts fail to appreciate the great responsibility which rests upon them to protect the proper balance between rights and obligations in times of the introduction of workfare policies. Secondly, case law does not recognize that withholding benefits rights may constitute a serious form of pressure and coercion upon the person involved. According to the European Court of human rights forced labour is labour exacted under menace of any penalty and performed against the will of the person involved, that is work for which he has not offered himself voluntarily”.[19] I fail to see why under some circumstances, particularly long term benefit dependency, sanctions would not amount to such a penalty. In the light of this argument it is interesting to be able to observe that some courts seem to be adopting a more critical attitude.
In the Netherlands the first court to create a breakthrough was the local court of Arnhem.[20] The case dealt with a social assistance beneficiary with an academic background who had been told to accept certain activities, offered to him by the ‘training centre’, a facility set up under the work first programme of the town of Arnhem. The claimant was told to sign a ‘job experience agreement’ under which he was given the choice either to work as a public gardener (weeding, hoeing), or to pack boxes of super glue. He had signed the agreement but subsequently refused to co-operate in the activities imposed on him by his ‘case manager’. This resulted in a penalty of a 40% benefit cut, during the period of one month. In its judgement the court came to the conclusion that the practices of the local council of Arnhem were not contrary to the prohibition of slavery and forced labour contained in art. 4 ECHR. The fact that the workfare activities were not voluntary because imposed under the threat of a penalty, did not alter this conclusion because, according to the court, social assistance is merely a safety net which presupposes that a person will return to paid employment as soon as possible. But while on the one hand the court ruled that in this case the activities offered should not be considered as disproportionate and excessive, it did on the other hand envisage that work first practices may run contrary to art. 4 ECHR, i.e. in the case of a beneficiary who is forced to carry out activities under threat of a penalty for a longer time when it is clear that such activities are in no way conducive to the re-integration in the regular labour market. 

Later, in another case the Central Appeals Tribunal upheld the rationale of the Arnhem court and offered a more extensive abstract framework for deciding when workfare may run contrary to the prohibition of forced labour.[21] This is a new approach in the case law. 

In the meantime, in February 2013 the British Court of Appeal rejected the recently introduced British Mandatory Work Programme.[22] The case was brought up by an unemployed geology graduate, miss Caitlin Reilly. She was doing voluntary work in a museum, but was then forced to take on unpaid work in a Poundland store in Birmingham. However, the court avoided the forced labour implications of this because in its opinion the regulations behind the work scheme did not comply with the Act of Parliament that gave the DWP the power to introduce the programme. At least for the time being Miss Reilly was let off the hook.

In Germany the  ein-Euro-job-scheme under Hartz IV was tested in 2008 by the Bundessozialgericht.[23] This case dealt with a 58 year old engineer who had to place protective casing around young trees for a local council company in Bavaria. For this job he merely received a small compensation fee. He refused because his 30 hours’ work week made it impossible for him to apply for a regular job. This argument was rejected by the court on grounds that the labour was organised by the local community for public purposes and had to be considered as additional to regular work. 

While in this latter two cases in Britain and Germany the forced labour argument was not dealt with by the courts, It did figure in a ruling of the Czech Constitutional Court of 27 November 2012.[24] This was a case brought in by some opposition MPs of the Czech parliament against a Mandatory Labour Programme in the Czech Republic. The MPs complained that this scheme is against the forced Labour convention of the ILO, the prohibition of forced labour of the ECHR and the very right to social security itself. The Czech court’s decision is a remarkable one. It crushed the scheme to bits: benefits cuts are a disproportional means of forcing people to accept work forced upon them by the authorities. 

The Czech ruling is an uncompromising one, unique among its sort, made possible by the harshness of the mandatory work scheme introduced. People who are unemployed for longer than two months have to accept any unpaid labour. When they refuse, they are scrapped from the employment register with the effect that they lose benefit all together. Except for some exceptional cases, the claimants have no influence over the work and the conditions under which it has to be carried out. According to the court: 

the state treats them in the same manner as persons sentenced for a crime, only for the reason that they became unemployed and are exercising their legal rights, without violating any legal obligation. Therefore, the obligation to accept an offer of public service does not serve to limit social exclusion, but to intensify it, and it can cause those performing it, whose work has the same elements externally (for other people) as serving a sentence, humiliation to their personal dignity”.

This is a relevant judgement which I would recommend to any person who is interested in workfare policies. Many aspects also pertaining to the work schemes in other countries are critically scrutinized: the curious status of the labour relationship, the risk of arbitrary practices, the coincidental nature of the type of jobs available and the argument that the work must be done for the purposes of work training. Many of the arguments defending such aspects are utterly rejected or refuted. 

One wonders how the Czech court would have looked upon the Mandatory Work Programmes applying in the Netherlands, Germany and the UK. Would they pass the test? The  ein-Euro-job-scheme probably would by reason of its strict regulation of rights of beneficiaries in the SGB. Perhaps the Mandatory Work programme would if only because of the short duration the work has to be carried out (30 hours a week for four weeks). But what about the Netherlands, where the maatschappelijk nuttige tegenprestatie may be imposed for unlimited duration in a way which is left virtually unregulated by law? 

What we learn from the fresh approach of the Czech court is that the rights the claimants under the workfare schemes should be made explicit. The work may not be degrading, there should be some right of choice, the work should benefit the claimant, individual circumstances must be taken into account as well personal beliefs, working conditions and working times should be adhered to, etc. These things must be regulated in the law, not just in internal guidelines like the ones that exist in the UK, or not simply unregulated as was the case in the Czech Republic and still is the case in the Netherlands’ maatschappelijk nuttige tegenprestatie.[25]
It is lessons such as these which illustrate exactly what role the judiciary can play in counterbalancing the rise of the repressive welfare state.

6. Conclusion

 In this article we discussed the trend of introducing increasingly strict obligations and sanctions for social security claimants in the Netherlands, the UK and Germany. We referred to this trend as the rise of the repressive welfare state. It was argued that such a welfare state must be looked upon in a critical way because it upsets the balance between rights and obligations in social security and may result in degrading treatment and an undermining of the “elevating function” of social security. Courts play an important role in maintaining the balance between rights and obligations. We have discussed some examples of case law in the three countries, but the champion of all courts is the Czech constitutional court which in November 2012 led the way to a more fundamental human rights approach to scrutinize repressive welfare state excesses.

[1] Loïc Wacquant, Punishing the Poor, the Neoliberal Government of Insecurity,  Duke University Press, 2009
[2] Cf. Kaaryn S. Gustaafson, Cheating Welfare, Public Assistance and the Criminalization of Poverty, NYU-press, 2012
[3] Cf. F.Noordam,
[4] Albertjan Tollenaar, ‘Aanscherping sanctiebeleid SZW-Wetten: vliegt de wetgever uit de bocht? ‘, Beleid en Maatschappij, 2013, (40) 2, 118-131 
[5] Alex Corra, ‘De maatschappelijk nuttige tegenprestatie:  de magische grens tussen sociale re-integratie en repressie’ in: Lokale verzorgingsstaat, nieuwe uitdagingen voor de sociale rechtsstaat , G.J. Vonk en A.Tollenaar (red.), Groningen, 2012
[6] Peter DwyerCreeping Conditionality in the UK: From Welfare Rights to Conditional Entitlements?’ Canadian Journal of Sociology  2004, 29(2): 265–287
[8] Willem Trommel, Gulzig bestuur (oratie VU Amsterdam), Den Haag, Lemma 2009
[9] Loïc Wacquant, Punishing the Poor, the Neoliberal Government of Insecurity,  Duke University Press, 2009
[10] Sociale Verzekeringsbank: evaluatie onderzoek uitwonende kinderen in Turkije en Marokko, 2008 accessed via http://www.journalistiekennieuwemedia.nl/NC/?p=742
[11] Reinart Barth, NRC-handelsblad 12 september 2013
[12] In the Netherlands: Uijl, M. den, Tollenaar, A., Bröring, H.E., Kwakman, N.J.M., & Keulen, B.F. (2012). Boetes in het strafrecht en het bestuursrecht: de rationaliteit van boetehoogte en vormgeving in boetestelsels. Tijdschrift voor sanctierecht & compliance 2012, nr. 6.  
[13] Research carried out by the Dutch Social and Cultural Planning Office Verzorgd uit de bijstand, De rol van gedrag, uiterlijk en taal bij de re-integratie van bijstandsontvangers, SCP 29 augustus 2012.
[14] Mandatory Work Activity Provider Guidance – Incorporating Universal Credit (UC) Guidance
(August 2013) accessed at http://www.dwp.gov.uk/docs/pg-part-p.pdf
[15] Cf. G.J. Vonk, `Kroniek jurisprudentie werknemersverzekeringen en bijstand 2011, Tijdschrift voor recht en Arbeid 2012, 20-25 and G.J. Vonk Hoofdzaken zekerheidsrecht, Kluwer, Deventer, 2013, Chapters 13 and 14.
[16] Grainne McKeever, Balancing rights and responsibilities: the case of social security fraud, Journal of Social Security Law 2009 .
[17] See the cases of 11 April 2007 by the Central Appeals Tribunal ,  inter alia LJN BA2447
[18] ECHR no. 30300/96, decisions of 26 February 1997, J.H. Talmon v. Netherlands, EHRLR 1997, 448-449 and more recently ECtHR in the decision of 4 May 2010 in Schuitemaker v.The Netherlands, Application no. 15906/08.
[19] ECrtHR judgement of 23 November 1983, Van der Mussele v. Belgium, para 34.
[20] Court of Arnhem, 8 October 2008, LJN BF 7284
[21] CRvB 8 februari 2010, LJN BL1093
[22] Court of Appeal [2013] EWCA Civ 66; [2013] All ER (D) 121 (Feb)
[23] BSG 16 Dezember 2008 AZ: B 4 AS 60/07 R
[24] Download in the English language: http://www.usoud.cz/fileadmin/user_upload/ustavni_soud_www/Decisions/pdf/Pl_US_1-12.pdf
[25] A first case of a lower Dutch court is indeed highly critical upon the maatschappelijke nuttige tegenprestatie as a ground for imposing work duties. See Court of Zeeland-West-Brabant 25 Februari 2013, LJN BZ5171.

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