Civil Service Law (Germany)

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The civil service law in Germany regulates the special legal relationship of civil servants . Civil service law is part of public law and part of special administrative law .

The state or other legal persons under public law require natural persons in order to be able to act . This task is performed by the public service . The state acts not only through civil servants , but also through employees  - formerly salaried and workers - remunerated according to the collective agreement for the public service ( TVöD ) or the collective agreement for the public service of the federal states (TV-L), soldiers , regulated in the Soldiers Act , and judges , regulated in the German Judges Act . These legal relationships are not part of civil service law, although there are many parallels.

Differences to labor law

The civil service (especially ground termination, rights and obligations) is unilateral sovereign by law from lawmakers designed, which is the appointment of a 'participation requiring respect administrative acts. So that the Civil Service Law differs significantly from labor law where by employers and employees an individual contract of employment and the social partners a collective employment contract ( collective agreement , company agreement ) is negotiated. For example, wage increases for employees in the public sector that have been agreed by the parties to the collective bargaining agreement can only be transferred to civil servants through a law. On the other hand, collective bargaining regulations, especially for employees in the public service, often refer to the regulations for civil servants in the same department (e.g. on employee liability and reimbursement of travel expenses).

Legal sources

Basic Law

The basic regulations of civil service law can be found in Article 33 of the Basic Law (GG) and must be observed by the legislature. The legislative competence for civil servants' law was fundamentally changed by the federalism reform . While the right of federal civil servants is still assigned to the exclusive legislative competence of the federal government according to Article 73, Paragraph 1, No. 8 of the Basic Law , the right of state and local civil servants is predominantly the sole legislative competence of the federal states . This applies in particular to salary, pension and career law. According to Art. 74, Paragraph 1, No. 27 of the Basic Law, there is competing legislative competence for status rights and obligations . The federal government has made use of this in the Civil Service Status Act with the consent of the Federal Council .

Before the federalism reform, the status right of state and local civil servants belonged to the framework legislative competence of the federal government according to Art. 75 GG old version, as well as the areas of salary and benefits to competing legislation according to Art. 74a GG old version

Civil Service Laws

Overview of the most important legal sources of the German federal civil service law

At the federal level, the Federal Civil Service Act (BBG), the Federal Salary Act (BBesG) and the Federal Civil Service Act (BeamtVG) apply , while the federal states have enacted their respective state civil servant , state salary and state supply laws. The Civil Service Status Act (BeamtStG) is also important, as it contains nationwide regulations that are legally binding and subject to legal requirements and must be observed by the federal states.

In addition, there are further - each from the federal government or by the states enacted laws or regulations , such as working time regulation , relaxing holiday Regulation , maternity and parental leave regulation , Ancillary Activities Ordinance , career Regulation, Federal Disciplinary Act .

Special regulations for certain groups of civil servants

For certain groups of officials special regulations exist - Examples: for federal police , the federal police law , the Federal Court of the Law on the Federal Court , for the Foreign Service, the Law on the Foreign Service , the Federal Employment Agency , the SGB III , the German Federal Bank , the Bundesbank Act or for customs, the law on financial management .

In principle , the Federal Civil Servants Act (Bundesbeamtengesetz) plus subsidiary laws and ordinances apply to the federal government and legal entities under public law that are subject to federal supervision , while for the respective federal states and the legal entities under public law they supervise (including municipalities and associations of municipalities) ) the respective state civil servant law is to be applied.

Constitutional foundations

The constitutional provisions of Art. 33 GG must be observed by the legislature:

The functional reservation of Article 33.4 of the Basic Law is intended to ensure that certain sovereign areas can only be exercised by civil servants who have a special duty of service and loyalty to the state. This is also referred to as the so-called "professional civil servants".

Article 33 (5) of the Basic Law secures, with the traditional principles of the civil service, a core set of structural principles of civil service law which, in the opinion of the Federal Constitutional Court, have at least already been recognized in the Weimar Constitution and obliges the legislature to observe them. These include: duty of service and loyalty , ban on strikes , career principle , alimentation principle , lifetime principle and the duty of care .

The civil service relationship

Types of officials

A civil servant is someone who has a public service and loyalty relationship with an employer . In addition to the federal government , the federal states , municipalities and municipal associations , other legal entities under public law (institutions, corporations and foundations) are also able to serve as employers , provided the latter are authorized to do so by law. This authorization differs considerably under national law (e.g. Chamber of Commerce and Industry , broadcasting corporation ). The church officials of the public religious societies, unlike the officials of the state corporations under public law, are not in a service and loyalty relationship to the state, but to the church.

The following civil servant relationships are distinguished, which are justified with the appointment ( § 6 BBG, § 4 BeamtStG):

The appointment to the civil service for life is the rule.

Career principle

Career law is regulated differently in the federal and state governments. In the federal government, a career includes all offices in the same subject area that require the same previous education. Preparatory service and the probationary period are also part of the career path. The civil servant is appointed to a career in accordance with his educational background.

A distinction is made between the following educational requirements for careers :

For top officials of the respective career, promotion to a higher career is possible under certain strict conditions. In the federal states there are also other models with different entry requirements (e.g. the single career path in Bavaria or the two-tier career group principle in Lower Saxony, Hamburg, Bremen and Schleswig-Holstein and, since July 1, 2016, also in North Rhine-Westphalia).

Appointment to civil service

The appointment of the civil servant requires an administrative act in accordance with the legally prescribed procedures and formal requirements . Can only be appointed

  • Germans within the meaning of Art. 116 GG,
  • Citizens of another member state of the European Union or a state party to the Agreement on the European Economic Area and
  • Citizens of a third country to which Germany or the EU have contractually granted a corresponding right to recognition of the professional qualification (e.g. Switzerland).

Exceptions from an urgent business need or in the university sector are possible ( Section 7 (3) BBG or Section 7 (3) BeamtStG). The applicant must have the professional qualifications required for the respective career (cf. Art. 33 (2) GG) and advocate the free and democratic basic order at all times . A vacant position must be available for the applicant .

The appointment certificate gives the applicant the office with corresponding remuneration (e.g. as a government councilor ). Any change in the specific civil service relationship, for example through promotion (assignment of another office with higher salaries - from the government councilor to the higher government council; the official title must also change) or promotion (change of career) are subject to the same formal rigor as the appointment to the civil service relationship.

The stated formal rigor is filled out by the certificate principle. Appropriate requirements must be made of a certificate. More detailed regulations can be found in § 8 BeamtenStG and § 10 BBG. Among other things, it regulates the exact wording of a document, with which a civil servant relationship is established ("... with reference to the civil servant relationship ..." ). The type of civil servant relationship must also be expressly stated in the certificate of appointment (honorary civil servant, temporary civil servant, retired civil servant, probationary civil servant, permanent civil servant).

If such a certificate does not meet the formal requirements, the appointment is void or can be withdrawn, see §§ 13 ff. BBG or § 11 para. 1 BeamtStG.

The idea of Art. 33 GG, which grants all citizens equal access to public offices, is set out in § 9 BBG and § 9 BeamtStG: Appointments are based on suitability, ability and professional performance regardless of gender, origin, race or ethnic background Origin, disability, religion or worldview, political beliefs, origin, relationships or sexual identity. This is only restricted by the provisions in § 7 BBG.

Full time and part time

According to Article 33 (5) of the Basic Law, civil service law is based on traditional principles of the professional civil service (see section “Constitutional foundations” ). These include, among other things, the principles of main occupation, service for life (lifetime principle) and the corresponding full alimentation ( alimentation principle ). Part-time employment based on an independent decision by the civil servant concerned does not contradict the alimentation principle; on the other hand, compulsory part-time work, in particular an appointment as a part-time civil servant, was declared inadmissible by several administrative courts. A civil servant's application for part-time work can only be rejected if there are business- related issues ( Section 91 BBG). Furthermore, part-time work for family reasons ( Section 92 BBG) and part-time employment during parental leave ( Section 7 of the Maternity Protection and Parental Leave Ordinance) also exist .

A part-time civil servant may undertake secondary employment to the same extent and under the same conditions as a full-time employee.

In the case of part-time work, the salaries of civil servants and the salary of candidates are generally reduced in the same proportion as the working hours ( Section 6 (1) BBesG ). When the respective basic salary levels are increased (according to the so-called "experience levels"), periods of part-time employment count as periods of full-time employment. Thus, civil servants with reduced working hours should not be disadvantaged in determining career qualifications , promotions and career advancement.

The years worked part- time are taken into account in the pension proportionately in relation to a full-time employee ; a supply deduction beyond this is not permitted.

Termination of civil service

The civil servant relationship is terminated ( Sections 30 to 59 BBG) through death, dismissal (in the event of loss of citizenship, incompatibilities with the civil servant status - e.g. as a member of the state parliament , at one's own request), loss of civil servant rights (e.g. in the event of a final conviction of imprisonment 12 months) and in the event of removal from the civil servant relationship due to a misconduct in discipline (this requires proceedings under the Disciplinary Act ) and through retirement or transfer (service law) .

Dismissal takes place by law or is carried out by a sovereign administrative act ordering the dismissal (in contrast to a purely civil law declaration of termination, with which an employment relationship can be terminated).

As a rule, retirement occurs upon reaching the age limit ( Section 25 BeamtStG, Section 51 BBG). For federal civil servants, this is usually 67 years, but there are transitional provisions until 2019. In the event of incapacity to work (physical or mental weaknesses - to be determined by the medical officer ), the civil servant can also be retired before reaching the age limit ( Sections 44 to 48 BBG).

Special regulations apply to political officials (officials who enjoy the special trust of the political leadership - the respective offices are defined in the civil service laws). You can be put into temporary retirement at any time ( § 30 BeamtStG, §§ 54 ff. BBG). Retired civil servants are entitled to benefits in accordance with the Civil Service Pension Act in accordance with their previous years of service .

Legal position of the official

Officials' duties

As an example, Article 80 of the constitution for the state of North Rhine-Westphalia of June 28, 1950 states :

“The officials and other administrators are servants of the whole people, not of a party or other group. They have to carry out their office and their tasks impartially and regardless of the person, only from a factual point of view. "

This corresponds to the regulations §§ 60 ff. BBG or §§ 33 ff. BeamtStG and the civil service laws of the federal states. Every civil servant takes the following oath of office:

“I swear that I will administer the office entrusted to me to the best of my knowledge and ability, obey and defend the constitution and laws, conscientiously perform my duties, and do justice to everyone. So help me God. "

- The oath can also be taken without religious affirmation.

This oath of office briefly contains the main duties of the civil servant towards the employer . The laws of the federal and state governments regulate further.

In principle, the duties of the civil servant mentioned also include implementing orders from higher-ups as long as they do not violate applicable laws. The official is obliged to notify the instructing body if he sees a conflict between the order and applicable laws ( remonstration ). The civil servant is also obliged to advise and support his superordinate bodies. He must refrain from making any private statements - even outside of the service - that could damage the reputation of the office or raise suspicion of taking part in a certain position. In principle, this also includes holding back politically. The civil servant is obliged to maintain secrecy ( official secrecy ) about all things that became known to him in the course of his activity - even after leaving active service . This also applies to statements in court, unless the employer has expressly released him from this obligation in the relevant case. The civil servant is obliged to dedicate his full labor to the employer. Secondary activities are generally subject to approval and their type and scope must not conflict with the actual service. The remuneration for the requested secondary employment must also be stated.

The officer is not allowed to accept money or gifts of value. Sections 331 to 358 of the Criminal Code apply to civil servants . It is also not permitted to accept titles or medals without the consent of the employer . The employer can order that the civil servant is obliged to wear uniform. The civil servant can also be obliged to have his abode near his place of work.

Failure to comply with official duties can be punished as an official offense in accordance with the regulations of disciplinary law. In the event of willful or grossly negligent misconduct that has resulted in damage , the civil servant is liable to recourse.

Civil servant's rights

Mirroring the duty of service and loyalty of the civil servant, there is the duty of care of the employer and the structuring of the civil servant relationship as a mutual loyalty relationship. The duty of loyalty of the civil servant corresponds to the loyalty obligation of the employer towards the civil servant, who must assist him and prevent damage (e.g. damage to reputation), as well as a hearing and advisory obligation.

The most important duty of care is the duty of alimentation appropriate to the office , which already follows from Article 33 (5) of the Basic Law . For this, the Office reasonable one grade (comp. Federal Remuneration Act ), a pension in retirement (see FIG. Civil Service Pensions Act ), the right to leave (comp. The holiday regulations), to medical benefit, on aid (see FIG. State aid regulations), accident compensation, property damage compensation, on travel expenses and relocation allowance. In terms of service law, the civil servant has the right to inspect the personnel file, to a certificate of service and the right to apply and lodge a complaint.

Legal protection of the civil servant

Because of the sovereign structure of the civil servant relationship, the duties and rights of the individual civil servant are unilaterally determined by the respective employer by administrative act. In order to enforce his rights or against burdensome administrative acts by the employer, the civil servant is initially free to submit applications and complaints. After exhaustion, legal action can be taken from the administrative court based on the rights or obligations of the civil servant relationship ( Section 54 BeamtStG, Section 126 BBG). The competitor lawsuit should be emphasized, which enables the civil servant to take action against unjustified preferential treatment of a competitor when filling a post.

Employee representation law

In the area of ​​public employers , the Works Constitution Act or the Codetermination Act, which is tailored to the private sector, does not apply ( Section 130 Works Constitution Act).

The co-determination of the employees - for civil servants and employees alike - is guaranteed through staff representation laws of the federal and state governments ( Section 51 BeamtStG). In Schleswig-Holstein, the State Personnel Representation Act is unusually called the Codetermination Act Schleswig-Holstein (MBG SH), which also applies to civil servants. For this purpose, a staff council , possibly also a youth and trainee representative, is formed at the respective authorities .

In staff representation law , a distinction must be made between rights of co-determination (decision requires the consent of the staff council) and rights of participation or hearing (staff council is to be involved). An arbitration board must be set up at the respective authority in the event of a conflict .

Exceptionally, civil servants are entitled to vote in the works council according to the Works Constitution Act and can be elected ( Section 130 (1) BetrVG). This applies if you are assigned to a company organized under private law ( Section 20 BeamtStG). These are mostly municipal owned companies such as municipal utilities that are exclusively or predominantly owned by the public sector.

Special civil servant relationships

For certain groups of civil servants, special provisions apply that override general civil servant law. Special provisions apply to civil servant scientists (professors, scientific assistants), since civil servants' rights are overlaid by the freedom of science under Article 5 (3) of the Basic Law. For example, the right to issue instructions is restricted in order to guarantee academic freedom. There are also special regulations for local electoral officials ( mayor , district administrator , aldermen ), as civil service law and local law overlap here.

Another special case are official staff who conclude an employment contract privately but are then treated according to civil service law. From January 1, 2023, no new official regulations may be established.

Developments in civil service law

With the transfer of the special assets of the Deutsche Bundesbahn and the Deutsche Bundespost into legal forms under private law ( stock corporation ), no more civil servants will be hired there. This means that the number of active federal civil servants has declined. Because of the different structure of employment and service relationships in the public service, there are demands from the trade unions for uniform labor law in the public service and for the abolition of the professional civil service . There is also discussion - taking into account the traditional principles of the professional civil service - to involve civil servants in the financing of one's own retirement provision during active service (so far, the retirement civil servants have been paid for this from the budgets of legal entities under public law).

It is also being considered that only core areas of the public service should be provided by civil servants such as the police , judiciary , financial administration and ministerial administration and that other areas should be excluded, such as no longer serving as civil servants . In the area of local government officials set long been a minority of employees are in the 1990s, the official laws were amended to only occupy leadership positions in the civil service sector still with officials on time. after the time has elapsed, an extension takes place or the respective office holder reverts to his original office. The latter regulation was declared inadmissible by a judgment of the Federal Constitutional Court.

On the other hand, civil servants are increasingly assigned to companies organized under private law by their employers ( Section 123a BRRG, since April 1, 2009 Section 20 BeamtStG) and Section 29 BBG; this applies in particular to companies in which the public sector is the majority owner.

As part of the federal reform of 2006, the legislative competence of the federal government for civil servants of the states and municipalities with regard to career, salary and pension law was shifted to the 16 federal states. The Civil Service Framework Act (BRRG) was replaced in 2009 by the Civil Service Status Act, which only contains a few principles. In the meantime (mid-2016) almost all federal states have designed their civil service law, including salaries and pensions, independently. Thus, for example, civil servants are paid according to 17 different tables, with the differences between the states (and the federal government) amounting to up to one salary group.

literature

  • Dirk Lenders, Cornelia Peters, Klaus Weber: The Federal Service Law, Federal Civil Servants Act, Federal Salary Act, Civil Servants Act, Commentary. Luchterhand Verlag, 2013, ISBN 978-3-472-08025-1 .
  • Sabine Leppek: Civil service law. 13th edition. CF Müller, 2019, ISBN 978-3-8114-4504-8 .
  • Thorsten Ingo Schmidt: Civil service law. 1st edition. Mohr Siebeck, 2017, ISBN 978-3-16-154747-8 .
  • Helmut Schnellenbach, Jan Bodanowitz: Civil service law in practice. 9th edition. CH Beck, 2017, ISBN 978-3-406-68723-5 .
  • Helmut Schnellenbach, Jan-Peter Fiebig: Public service law . 3. Edition. HWV Hagener Wissenschaftsverlag, Hagen 2014, ISBN 978-3-7321-0140-5 .
  • Erwin Schütz, Joachim Maiwald, Robert Brockhaus a. a .: Federal and state civil service law . R. v. Decker Verlag, ISBN 3-7685-5870-3 .
  • Rudolf Summer (ed.): Documents on the history of civil service law . Bonn 1986.
  • Stefan Werres: Civil Service Constitutional Law . Verlag Rehm, Munich 2011, ISBN 978-3-8073-0267-6 .
  • Stefan Werres, Marius Boewe: Civil service law - guidelines for practice and study on the basis of the federal civil service law. 2nd Edition. dbb-Verlag, 2010, ISBN 978-3-87863-152-1 .
  • Manfred Wichmann, Karl-Ulrich Langer: Public service law. The civil service and labor law for the public service . 8th edition. Kohlhammer-Verlag, 2017, ISBN 978-3-555-01910-9 .

Web links

Wikisource: Public servants  - Sources and full texts

Individual evidence

  1. ^ VG Lüneburg , judgment of May 7, 2003, Az. 1 A 284/00, (full text)
  2. ↑ Part-time employment (compulsory part-time). beamten-informationen.de, accessed on March 30, 2017 .
  3. ↑ Compulsory part-time employment for teachers. Retrieved March 30, 2017 .
  4. ↑ a b c Part-time in public service. www.beamten-informationen.de, accessed on December 9, 2015 .
  5. ↑ BVerfG , decision of June 18, 2008, Az. 2 BvL 6/07, (full text)
  6. ↑ BVerfG, judgment of May 28, 2008, Az. 2 BvL 11/07, (full text)