Alimentation principle

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In the German civil service law , the alimentation principle is one of the traditional principles of the professional civil service (cf. Art. 33 (5) Basic Law (GG)).

The underlying alimentation theory is the theory that a civil servant does not receive payment for a service, but rather on the basis of alimentation from the state.

meaning

The employer is obliged officials to pay alimony and their families for life appropriately and seek their rank , after related to their official responsibilities and about the meaning of the Civil Service to the general public in accordance with the development of the general economic and financial situation and the general standard of living adequate To provide a living .

The alimentation principle describes the employer’s obligation to grant civil servants appropriate salaries during active service, in the event of illness and incapacity, and after retiring from active service for reasons of age . Alimentation is based on the civil servant's loyalty to the state and is intended to enable him to perform his duties appropriately without the economic difficulties that his office requires. The livelihood of the civil servant and his family should be related to the office and appropriate. The activity of the civil servant is not based on an employment contract , but on an administrative act , the appointment ( § 10 BBG ) by handing out a certificate of appointment ( § 12 para. 2 BBG) and the performance of an oath ( § 64 BBG).

The maintenance principle involves aid in case of illness and care for family members only if the remuneration without additional aid no longer seem appropriate. Otherwise, according to established case law, the aid has no intrinsic connection to the alimentation principle. Rather, the annex to the civil service welfare principle is considered in the aid .

The state has a great deal of leeway in assessing the appropriateness of remuneration, provided that the necessary training is available. In addition, according to the case law of the Federal Constitutional Court, the alimentation principle must be adapted to the respective time conditions. When calculating the remuneration, it was taken into account that civil servants - due to their non-dismissability , their entitlement to benefits and their subsequent pension entitlement - do not make their own contributions to social security .

Pay is implemented in practice as part of the alimentation principle in the Federal Salary Act for civil servants and judges of the federal government as well as professional and temporary soldiers ( Section 1 BBesG) and in the salary laws of the federal states for state civil servants and judges as well as local civil servants , as well as in the Civil Service Supply Act .

Due to the alimentation principle of the Basic Law, the salary legislature is not obliged to compensate for regionally different living costs. Such an obligation to act does not follow from the performance principle ( Art. 33 (2) GG). A local allowance system for civil servant salaries is not protected as a traditional principle of the professional civil service.

Alimentation level

Since the standardization of the so-called debt brake (prohibition of new borrowing) in Article 109.3 of the Basic Law, legal proceedings by civil servants (professors, soldiers and judges) have focused on personal contributions to aid , the reduction of Christmas bonuses (allowance), and the cancellation of holiday pay as well as the local supplements for people with more than two children.

For example, the R1 payments from 2008 to 2010 in Saxony-Anhalt and the A 10 payments from Saxon civil servants in 2011 were declared unconstitutional.

According to the case law of the Federal Constitutional Court , the following criteria may be considered as criteria for the (in) adequacy of the constitutionally owed level of alimentation (minimum alimentation) :

a difference between the pay trend and

of at least 5% of the index value of the increased salary in the last 15 years;

  • a reduction in the gaps between two comparable salary groups by at least 10% in the past five years (system-internal salary comparison); the net alimentation in the lower salary groups must be at least 15% above the subsistence level under social assistance law;
  • the annual gross income including any special payments is 10% below the average of the federal government and other states in the same period

If three of the five criteria mentioned are met, there is a rebuttable presumption of unconstitutional under-alimentation.

In March 2007, the Federal Constitutional Court also declared the three-year period following a higher office to be unconstitutional with regard to the amount of remuneration in retirement as a violation of the principle of benefits from the last office. A maximum period of two years still applies.

literature

  • Thilo Doleschal: The principle of care and alimentation in the service law of the European Community . Dissertation, University of Hagen 1999.
  • Beate Thiemer: The alimentation principle. Explanatory approaches since the beginning of financial theory building . Duncker & Humblot, Berlin 1992, ISBN 3-428-07346-0
  • Franz Lindner: Salary and "debt brake" - analysis of the new dogmatics of the BVerfG on the alimentation principle . BayVBl. 2015, 801

Web links

Individual evidence

  1. ^ Gerhard Köbler : Legal dictionary. For study and training. 17th edition. Verlag Franz Vahlen, Munich 2018, ISBN 978-3-8006-5881-7 : Alimentation Theory
  2. ↑ a b Federal Constitutional Court : Press release No. 95/2015 of December 18, 2015 on the decision of November 17, 2015 - 2 BvL 19/09, 2 BvL 20/14, 2 BvL 5/13, 2 BvL 20/09
  3. ^ Judgment of the Second Senate - 2 BvR 556/04. In: https://www.bundesverfassungsgericht.de/ . Federal Constitutional Court , March 6, 2007, accessed on September 23, 2019 (Ls .; Rn. 39).
  4. ↑ Reinhard Müller: Judgment on the salary of professors: Back to the alimentation principle FAZ , May 15, 2012
  5. ↑ Press release No. 27/2015 of May 5, 2015 on the judgment of May 5, 2015 - 2 BvL 17/09, 2 BvL 1/14, 2 BvL 6/12, 2 BvL 5/12, 2 BvL 4/12, 2 BvL 3/12, 2 BvL 18/09
  6. ↑ Michael A. Else: Alimentation of officials. BVerfG specifies criteria: How much money is appropriate? ( Memento from June 11, 2016 in the Internet Archive )
  7. ^ Franz Lindner: On the constitutional sustainability of the alimentation principle - comments on the judgment of the BVerfG on A-salary of November 17, 2015 ZBR 2016, 109
  8. ↑ BVerfG, decision of March 20, 2007 - 2 BvL 11/04