Why do people chase after public services

Status & service law

Because of the special requirements for state benefits, the civil servant relationship is different from “normal labor law”. In most of its tasks, the state cannot be compared to a private company: Our society is inconceivable without a government capable of acting, an independent judiciary and an administration based on the rule of law. Last but not least, neutral authorities bound by law and statute also form the basis that enables business to be able to work and plan reliably. This core framework of state action must be ensured if the state is to fulfill its constitutional tasks.

The public administration is by its nature a service enterprise, its services are provided by the employees. This results in a conflict: On the one hand, the ability to act must be permanently secured. On the other hand, Article 9 (3) of the Basic Law grants freedom of association to all people and all professions. This means not only the freedom to form trade unions, but also the right to agree working conditions through collective agreements and, if an agreement is not reached, to fight for a conclusion. The state is the opponent of industrial action in the public service.

The Basic Law resolved this conflict by giving all employees in the public service unrestricted access to all coalition rights. At the same time, the constitution itself, that is, with the freedom of association “on an equal footing”, has laid down the civil servant relationship as a special service law tailored to the specific tasks of the state. It is subject to special rules that are shaped by the idea of ​​neutrality and independence, the rule of law and reliability. That is why the civil servant relationship is set up for life and that is why civil servants can organize themselves in a union, but their working conditions are not determined by a collective agreement, but by the legislature. Therefore there is no right to strike - but a specially designed “right to participate” of the trade union umbrella organizations.

There are also restrictions on freedom of association in almost all other countries, but there they are usually imposed on certain professional groups. This is also compatible with international law, since both the conventions of the International Labor Organization and the European Convention on Human Rights (ECHR) provide for restrictions in the state. Art. 11 para. ECHR allows restrictions on the freedom of assembly and association for members of the state administration to maintain order, protect health or morals and protect the rights and freedoms of others.

Instead of imposing restrictions on certain professions, the Basic Law went the way of providing a group of employees, civil servants, with a special legal status and deploying them in areas that are important for public life.

The relevant rules are contained in Article 33 of the Basic Law:

  1. Every German has the same civil rights and duties in every country.
  2. Every German has equal access to every public office according to his or her suitability, qualifications and professional performance.
  3. The enjoyment of civil and civic rights, admission to public office and the rights acquired in public service are independent of religious beliefs. No one should be disadvantaged by belonging or not belonging to a creed or a worldview.
  4. The exercise of sovereign powers is a permanent task, as a rule, to be assigned to members of the public service who are in a public service and loyalty relationship.
  5. The law of the public service is to be regulated and further developed taking into account the traditional principles of the professional civil service.

Article 33, Paragraph 4 of the Basic Law speaks of “sovereign powers” ​​as a rule for the deployment of civil servants. Naturally, these are the areas in which the state regulates and regulates the citizens. In addition to this “classic” mandate, the aspect of reliably guaranteeing services that are necessary for day-to-day life and the functioning of state institutions has now come to the fore. It must be taken into account that the ways in which state goals are implemented have also changed significantly in recent years. While the "sovereign enforcement" was in the foreground in the past, primarily in the form of administrative acts, the planning, structuring and preventive administration with new forms of cooperative administrative trade, such as agreements or public law contracts, is now gaining increasing importance. In their effects, i. H. Even in their relevance to fundamental rights, these forms of administration are in no way inferior to the classic "intervention administration". Just like their “official” counterpart, they need personal security. Any connection to the external appearance of the state, to the form of state action, as it is assumed by the often requested restriction to a “sovereign area”, must therefore come to nothing from the outset.

Both the term “professional civil service” and the “traditional principles” have a historical reference. The official's path led from the “prince servant” to the “state servant”. Friedrich Wilhelm I is considered to be the father of the professional civil service. The principles of civil service law were properly differentiated in the Weimar Constitution, and they have continued to develop since then. Thus, the case law interprets the traditional principles of the civil service today as a core area of ​​structural principles that has been recognized and granted as binding for a long, tradition-building period. In the meantime, a certain core set of structural principles of the civil service has developed: principles that shape the image of the professional civil service in its form in such a way that their essential change, break-through or abolition would result in the fact that the professional civil service no longer exists in its conventional form could speak. These “traditional principles” are rights and obligations, some of which are mutually dependent.

According to numerous individual decisions by the Federal Constitutional Court, the traditional principles of the civil service include, for example:

  • Official secrecy (this principle also applies after the active civil service relationship has ended).
  • Alimentation (principle of [officially] adequate pay and provision for civil servants and their families).
  • The lifetime principle (it is designed to employ civil servants throughout the working life).
  • The career principle (is closely linked to the professional civil service for life).
  • The performance principle (it secures and controls the constitutionally anchored access to all public offices, when entering the civil service and when advancing).
  • The impartial conduct of office (civil servants must behave in a politically neutral manner in the performance of their duties).
  • Inadmissibility of the civil servants' strike (prohibition of collective measures to safeguard common professional interests).
  • The right to represent officials (officials have the right to form trade unions or professional associations).
  • The employer's duty of care (as a counterpart to the civil servants' duty of loyalty to the employer).
  • The right to inspect the personal files (this right gives officials the opportunity to express their views before matters are included in the personal file).
  • Judicial protection (officials can be heard about complaints and allegations of a factual nature; they must be given the opportunity to appeal).

The civil servant relationship has continuously developed in recent years and adapted to new social requirements and the conditions of working life. The often scolded “traditional principles” may sound a bit old-fashioned to our current understanding, but they are highly flexible in their effect because they set goals and leave a wide framework for implementation. Today it is completely natural that there are part-time jobs and leave of absence, that EU nationals can be regularly appointed as civil servants, that there are performance elements such as performance bonuses and bonuses, that flexible and family-friendly training paths are opened up in career law.

The civil service regulations underwent the greatest upheaval after the first federalism reform, which largely came into force on September 1, 2006. Until then, in the interest of a uniform range of services in all federal states, the federal government was able to define the basic principles of civil service law via the so-called framework law and to set the salary for active civil servants and the provision for “retirees” across the country. That has changed: the federal government can still jointly regulate the basics of status law, such as recruitment or transfers; that happened with the Civil Service Status Act. The regulation of salaries, pensions and the entire career law, on the other hand, is now, in each case for their area, with the federal states and with the federal government for the federal civil servants. The dbb has always feared that this would at least restrict the mobility that is politically demanded by all sides in the federal territory, because each country can define its own requirements. At least as serious is the fact that, contrary to the principle of the unity of living conditions, the respective financial situation in the country now essentially determines what the income conditions look like. The consequence is an unwanted personnel competition between the employers for the best people, especially for the best junior staff.