Established principles of professional civil service

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The traditional principles of the professional civil service are the foundations for the professional civil service in Germany .

history

The oldest surviving appointment of a professional civil servant is the appointment of Dietrich von Kleve by the Roman-German King Rudolf von Habsburg in 1279. At this time, management by professional civil servants was gradually turning away from management by feudal people. The regulated occupation of civil servants goes back to the Prussian soldier king Friedrich Wilhelm I (1713–1740), who was therefore also called the “father of the civil service”. The preparatory service and the career test were created for the first time under his aegis . It was his enlightened, absolutist son Friedrich II (the Great) (1712–1786) who raised the common good to the primary goal and saw himself as the first servant of the state. He continued the expansion of the civil service.

The first comprehensive legal regulation of the civil servant profession was formulated in the Prussian General Land Law of 1794: "On the rights and duties of the servants of the state". Since then the official was no longer a servant of his prince, but a servant of the state. The core regulations, which had become firmly established in the Weimar Republic at the latest , are among the traditional principles of professional civil service within the meaning of Article 33 (5) of the Basic Law . In the time of National Socialism , the position of the professional civil servants was abused by the law for the restoration of the professional civil service to enforce racist ideology . After the Basic Law came into force, the Federal Constitutional Court recognized further individual rights and obligations as part of the traditional principles of the civil service.

content

According to Art. 33 , para. 5 GG is the right of public service "fix, taking into account the traditional principles of the professional and further develop." The Federal Constitutional Court defined these principles as the "core set of structural principles, the longer generally, or at least predominantly, and during a "Tradition-forming period, at least under the Imperial Constitution of Weimar , have been recognized and preserved as binding" (cf. BVerfGE 8, 332 ). As part of the federalism reform , the above Sentence supplemented by: "and further develop".

The traditional principles of the civil service include, among other things

“In connection with paragraph 5 (meaning Article 33, Paragraph 5 of the Basic Law), these principles show that the Basic Law, following on from the German administrative tradition, sees the professional civil service as an institution which, based on expertise, professional performance and the loyal fulfillment of duties, is stable Secure administration and thus represent a balancing factor vis-à-vis the political forces that shape state life. "

- BVerfGE 7, 155

Article 33 (5) of the Basic Law also encompasses the traditional position of judges as a special group of members of the public service and grants them individual rights similar to fundamental rights, insofar as the traditional principles of judicial official law to be observed by the legislature can be proven, which precisely the personal legal position help shape the judge. One of the established principles of judicial office law is, in particular, the principle of factual and personal independence . The content of the traditional principles of judicial office law within the meaning of Article 33 (5) of the Basic Law can only be what is the content of the independence of the judge within the meaning of Article 97 of the Basic Law.

Relationship to the European Convention on Human Rights

The European Convention on Human Rights conflicts with some of the principles of the professional civil service. For example, the ECHR allows exceptions to the freedom of association and the associated right to strike only for sovereign persons, the police and the military , but not for other civil servants. The same principle applies to restrictions on political activity and freedom of expression . The Federal Administrative Court decided in early 2014 that the legislature must resolve this conflict and that the strike ban will only be accepted for a transitional period.

On June 12, 2018, the Federal Constitutional Court decided in four constitutional complaint proceedings by civil servant teachers that the strike ban was compatible with the Basic Law. In its judgment, the court devoted itself in detail to the decisions of the European Court of Justice on the freedom of association laid down in Article 11 of the ECHR and the associated right to strike, but, due to the peculiarities of the German system of professional civil servants, found that the strike ban was in any case under Article 11 (2) sentence 1 ECHR or Art. 11 para. 2 sentence 2 ECHR is justified. “When it comes to the right to strike for civil servants, Karlsruhe emphasizes that Strasbourg decided on cases from a different national legal system, in this case from Turkey. But you have to consider the context and the 'legal cultural background' in the respective state and therefore not adopt the judgments here one-to-one. "

influence

The principles are u. a. Standardized in Art. 33 V GG, the Federal Civil Service Act (BBG) and the State Civil Service Acts as well as the Federal Salary Act (BBesG) and the State Salary Act; also in the civil service law framework law , which was (largely) replaced by the civil service status law in April 2009 .

literature

Web links

Individual evidence

  1. ↑ Certificate edited and translated by: Ferdinand Krause, Die hergebrachten des Berufsbeamtentums, Appendix B.
  2. ↑ BVerfG, decision of July 14, 2016 - 2 BvR 661/16 marginal no. 14 mwN
  3. ↑ cf. BVerfGE 12, 81, 88; 55, 372, 391 f.
  4. ↑ cf. BVerfGE 38, 139, 151.
  5. ↑ Federal Administrative Court: BVerwG 2 C 1.13 - judgment of February 27, 2014 , press release of February 27, 2014, full text of BVerwG 2 C 1.13
  6. ↑ Federal Constitutional Court: Judgment of the Second Senate of June 12, 2018 in the proceedings 2 BvR 1738/12, 2 BvR 1395/13, 2 BvR 1068/14 and 2 BvR 646/15, press release No. 46/2018 of June 12, 2018 with the title "Strike ban for civil servants constitutionally" , full text of the decision
  7. ↑ Decision of the Constitutional Court: Why officials are not allowed to strike , Tagesschau. June 12, 2018.