Principle of incompatibility

In politics and legal theory, the principle of incompatibility means the paradigm that a person should not be active in office and mandate at the same time (for the exceptions see below). This principle developed from the idea of the separation of powers , according to which the legislature , executive and judiciary should control each other.

Constitutional incompatibilities

The German Basic Law prohibits the Federal President from belonging to a government or a legislative body ( parliament ) (Article 55). Article 66 prohibits members of the Federal Government ( Federal Chancellor and Federal Minister ) from taking on any other paid office, exercising a trade or other profession, or from belonging to the supervisory board of a company aimed at making acquisitions without the consent of the Bundestag . Unlike the Federal President, however, members of the Federal Government are permitted to hold a parliamentary mandate in addition to the government office. The parallel exercise of an office of the executive and the legislative branch has also met with criticism as a breach of the principle, but is tolerated as a traditional feature of the parliamentary system of government. The admissibility of a parliamentary mandate and an activity as lay judge or honorary judge is also recognized for a permissible breach of the principle of separation of powers. Likewise, a member of parliament may simultaneously act as a lawyer and thus as an independent body responsible for the administration of justice.

The principle of incompatibility also includes so-called waiting periods after leaving a government office.

Temporary incompatibility

The Bismarck Reich constitution regulated the temporary incompatibility in Art. 21 (2) : If a member of the Reichstag accepted a higher-paid state office in the Reich or a member state, he lost his mandate in the Reichstag. This loss was temporary: there was then a replacement election in which he could run again.

"If a member of the Reichstag accepts a paid Reichsamt or a paid state office in a federal state or enters an office in the Reich or state service with which a higher rank or salary is connected, he loses his seat and vote in the Reichstag and can only regain his place in the same by a new election. "

- Art. 21 (2) Imperial Constitution

For example, the mandate of Wilhelm Wehrenpfennig, elected in the Reichstag constituency of Kassel 3 , ended on January 5, 1878 with the appointment of Wehrenpfennig as a secret councilor in the Ministry of Trade and Industry in Berlin. In the replacement election on February 28, 1878, he was re-elected in the same constituency with 69.4 percent of the vote and remained a member of the Reichstag. This regulation was, so to speak, an indication to the voter that a conflict of interest might exist. The voter was then free to confirm their choice or to consider the conflict of interest as more important. An example of the non-re-election is the replacement election on May 23, 1880 in the Reichstag constituency of Kassel administrative region 2 . Here the long-time mandate holder Otto Bähr had to run again after he had been appointed Reich judge and was not re-elected.

Local law incompatibilities

For full-time mayors and councilors, the prohibition of further professional activity usually follows from civil service regulations anyway. Honorary mayors (as honorary officials ), on the other hand, are generally allowed to work, but not to represent third parties against their own municipality ( regional authority ).

In principle, a city councilor or municipal council member should not also be responsible for implementing resolutions of the municipal council. An elected candidate for a municipal council who has previously been a civil servant, employee or worker employed by the municipality has to choose between continuing employment with the municipality and accepting the mandate. The municipal constitutional laws usually also prescribe such incompatibility for employees of municipal companies.

Company and association law incompatibilities

Various corporate law standards prohibit members of bodies that represent a legal person in court from representing third parties against the legal person. For example, the board member of an association or a managing director of a GmbH may not represent third parties against the association or the GmbH. In principle, this prohibition of representation does not apply to members of organs who do not have judicial power of representation. Therefore, a lawyer can represent third parties against a cooperative and at the same time be a member of the representative assembly of the cooperative, unless the articles of association of the cooperative expressly prohibit this.

Professional incompatibilities

In Germany, for example, the professional code of conduct for lawyers ( BORA ) also contains incompatibility regulations . According to § 3 Paragraph 1 BORA, the lawyer is prohibited from acting in cases in which he has already advised or represented the other party. The mediator is prohibited from conducting mediation because of his obligation to be impartial in accordance with Section 3 (2) of the Mediation Act if he has previously worked for one party on the same matter. He is also not allowed to act as a lawyer for one side after mediation in the same matter.

Section 8 of the Federal Notary Code (BNotO) generally prohibits the notary from exercising another salaried office or exercising another profession. His duty of independence and impartiality (§ 28 BNotO) forbids him to act as a notary if he was previously a lawyer in the same matter.