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  • The public service in Germany

    www.bmi.bund.de

  • - 1 -

    TABLE OF CONTENTS

    Preface ....................................................................................................................................... 2The public service in numbers.............................................................................3Federal Republic of Germany ..............................................................................4

    I. The structure of the state and of the public administration in Germany..........................61. Tiers of state governance and administration .....................................................................62. The administration of the Federation ..................................................................................93. The administration of the Lnder ......................................................................................144. The administration of local authorities...............................................................................185. The indirect public administration......................................................................................206. The non-public institutions ................................................................................................227. The judiciary......................................................................................................................24

    II. Modernising the Public Administration ............................................................................261. Modern State - Modern Administration (www.staat-modern.de) .....................................262. Bund Online2005 (www.bundonline2005.de)....................................................................29

    III. The foundations of employment in the public service ...................................................311. Employment in the public service......................................................................................312. Eligibility for the public service ..........................................................................................393. Foundations of the employment of civil servants ..............................................................424. The foundations of the relationship between public employer and employee ...................635. General terms of employment for civil servants and public employees.............................716. Occupational health and safety.........................................................................................81

    IV. The pay systems in the public service ............................................................................821. The remuneration of civil servants ....................................................................................822. The pay of public employees ............................................................................................943. Special payments............................................................................................................9114. Salaries and wages in the new Lnder ...........................................................................1025. Salary and wage increases.............................................................................................1036. The remuneration of members of the government ..........................................................1077. Reform measures ...........................................................................................................1098. Developments in personnel expenditure.........................................................................111

    V. The pension systems in the public service ...................................................................1121. The pensions of civil servants .........................................................................................1122. The pensions of public employees..................................................................................122

    VI. Annex ...............................................................................................................................128Summary of the most important sources of legislation........................................................128

  • - 2 -

    Preface

    Dear reader

    The public administration of the Federation, the federal states

    (Lnder) and the local authorities with their 4.8 million staff, ofwhich approximately 1.6 million are civil servants, is at the

    service of the citizens of our country. Close contact with citizens,

    quality and efficiency are the guiding principles of the public service in performing its

    diverse tasks. All reform efforts aim at constantly improving performance while at the same

    time reducing costs.

    With this second edition of the brochure about the public service in Germany, the first

    edition of which was published in 1999, I would like to inform the interested public about

    the evolution of the public service, covering, for example, the Federal, Lnder and localauthority administrative structure in Germany, working conditions, remuneration and

    pensions of civil servants and public employees.

    The esteemed reader may also gain insight into the Federal Government's initiatives for

    reforming the Public Service Law under the programme "Modern State - Modern

    Administration". The preparedness of our staff to take responsibility and to perform,

    combined with high motivation, are essential prerequisites without which the public service

    could not fulfil its demanding tasks on behalf of Germany's citizens so effectively.

    I have good reason to thank all our public service staff members - working in the schools

    and universities, the police and security authorities, the health sector and the general

    administration, as well as in other authorities and institutions - for their responsible work.

    Otto Schily

    Federal Ministry of the Interior

  • - 3 -

    The public service in numbers (as per 30 June 2000)

    Total number of persons in gainful employment in Germany 1 36,6 million

    Men 20,7 million

    Women 15,9 million

    Public service staff:2 4,8 million

    Men 2,3 million

    Women 2,5 million

    Area of employmentFederation 502,000

    Indirect public service 488,000

    Lnder 2,273,300Local authorities 1,572,000

    Employment relationshipCivil servants 1,588,600

    Judges, public prosecutors 27,400

    Professional and fixed-term military personnel 186,600

    Salary earners in the public service 2,351,500

    Wage earners in the public service 681,200

    1) Source: Federal Statistical Office, series 1, vol. 3, 20002) Source: Federal Statistical Office, series 14, vol. 6, 2000

    Lnder47%

    Local level33%

    Federation10%

    Indirect public service

    10%Wage earners

    14%

    Salary earners49%

    Civil servants, judges33%

    Professional and fixed-term military

    personnel4%

  • - 4 -

    Federal Republic of Germany

    Baden-Wrttemberg10.5 million inhabitants

    Bavaria12.2 million inhabitants

    Saarland1.1 million inhabitants

    Rhineland-Palatinate4.0 million inhabitants

    Hesse6.1 million inhabitants

    Schleswig-Holstein2.8 million inhabitants

    Mecklenburg-WesternPomerania

    1 8 million inhabitants

    Berlin3.4 million inhabitants

    Hamburg1.7 million inhabitants

    Bremen0.7 million inhabitants

    Lower Saxony7.9 million inhabitants

    Saxony-Anhalt2.6 million inhabitants

    Brandenburg2.6 million inhabitants

    Saxony4.4 million inhabitants

    Thuringia2.4 million inhabitants

    North-Rhine Westphalia18.0 million inhabitants

  • - 5 -

    Area 357,000 km2

    Total population 82.2 million inhabitants- Men 40.1 million (48.8%)- Women 42.1 million (51.2%)of whom: foreigners 7.3 million (8.9% of the total population)of whom: EU citizens 1.9 million (2.3% of the total population)

    Source: Federal Statistical Office, population statistics 2000

  • - 6 -

    I. The structure of the state and of the public administration inGermany

    1. Tiers of state governance and administration

    In the Federal Republic of Germany, the fundamental order of the state is governed by the

    constitution, the Basic Law of 23 May 1949. A fundamental principle enshrined in the Basic

    Law is the rule of law, which is the very basis of the order of the state. It determines therelationship between the state and its citizens.

    Three principles enshrined in the Basic Law are of particular significance for the structure

    of the state and the administration, namely:

    the separation of powers,

    the federal system of government,

    the self-government for local authorities.

    The separation of powers is at the core of the rule of law. In order to safeguard theinterests of the citizens vis--vis the state and to prevent the state from becoming all-

    powerful, state power is divided into three functions - legislative, executive and judicial -

    which are each assigned to special bodies. The principle of the separation of powers is

    intended to allow these state functions to limit and control each other.

    Germany was constituted as a Federal Republic on the basis of the Basic Law. The

    Federal Republic is a federation of subnational states (Lnder) in one country with afederal government (Bund). As members of this Federation, the Lnder are states withsovereign rights and responsibilities which are not devolved from the Federation but are

    granted to them by the Basic Law.

    State power is divided between the Federation and the Lnder according to the tasks andfunctions they perform. The Basic Law assigns everything that has to be regulated and

    managed in the general interest of the public to the Federation. The Lnder have beenassigned responsibility in all other matters. Accordingly, the main force of the legislative

    lies with the Federation, and the focus of the administrative apparatus with the Lnder. In

  • - 7 -

    the Federation and the Lnder, the vast majority of administrative tasks are carried out bythe "direct state administration" (i.e. by Federal or Land authorities), but also in part bylegally independent administrations, known as "indirect" public administration. The legally

    and organisationally independent institutions of the "indirect" administration are subject

    only to limited state supervision - or are completely independent, as is the case with the

    German Central Bank (Bundesbank).

    Many links between the different institutions force the decision-makers of the Federation

    and the Lnder, which are autonomous under constitutional law, to work together incarrying out tasks. The Lnder influence the legislation and administration of theFederation, as well as matters concerned with the European Union, through the

    Bundesrat.

    In a federal system, a certain degree of co-ordination both among the Lnder and betweenthe Lnder and the Federation is necessary in the interest of functionality.

    Therefore the state and administrative apparatus are largely structured along uniform

    lines. The following make a major contribution to this uniformity:

    the legal system, which is largely uniform throughout the Federation,

    the public service, which is largely standardised throughout the Federation, and

    the economic and financial system, which is uniform throughout the Federation.

    Responsibility for the public administration, however, does not lie with the Federation and

    the Lnder alone. Under the Basic Law, local matters are dealt with independently by thebodies of local self-government (local authorities). In addition, local authorities alsoperform state functions on commission.

    Three main, independent levels can be distinguished as a basic layout in the structure of

    the administration:

    the administration of the Federation,

    the administration of the Lnder, and

    the administration of the local authorities.

  • - 8 -

    In principle, each of these administrative tiers has its defined group of functions. There is

    no hierarchical pyramid of agencies from local authority through a Land to the Federation.

    In total, the direct state administration, the administration of the local authorities and the

    indirect public administration employ a staff of almost 4.8 million. Of these, 502,000 (of

    whom 187,000 are military personnel) work in the Federal administration, 2.3 million in the

    Lnder administrations, 1.6 million in the local authorities' administrations, and 488,000 inthe indirect public administration.

    In Germany the proportion of public service staff in the total population is in line with the

    international average.

    Proportion of public service staff as a percentage of the entire population by countries as of 1998

    Source: OECD, publication by PUMA/Human Resources Management (2000)

    02468

    101214

    Austr

    alia

    Austr

    ia

    Cana

    da

    Czec

    h Rep

    ublic

    Denm

    ark

    Finlan

    d

    Franc

    e

    Germ

    any

    Hung

    ary Italy

    Korea

    New

    Zeala

    nd

    Portu

    gal

    Spain

    Swed

    en UK USA

    in %

  • - 9 -

    2. The administration of the Federation

    The - numerically rather small - direct federal administration with approx. 315,000 public

    service staff members (excluding the military) performs those public tasks which need to

    be carried out specifically by the Federation and which are necessary or expedient in the

    interest of the state as a whole.

    The federal administration includes the Federal Government in its policy-making role, and

    authorities which carry out administrative functions of the Federation. Accordingly, we

    distinguish between the highest federal authorities and the subordinate federal authorities.

    Highest federal authorities

    The Federal Government consists of the Federal Chancellor and the federal ministers.

    Three independent federal authorities report directly to the Federal Chancellor: the Federal

    Chancellery, the Press and Information Office of the Federal Government, and the Federal

    Government Commissioner for Cultural Affairs and the Media. Each federal minister is in

    charge of one federal ministry.

    According to the organisational provisions contained in the Basic Law (Art. 65), three principles guide the

    work of the Federal Government:

    The general policy principle: The Federal Chancellor determines and is responsible for generalpolicy.

    The ministerial principle: Within the general policy determined by the Federal Chancellor, eachfederal minister conducts the business of his/her department autonomously and on his/her own

    responsibility.

    The collegiate principle: The Federal Government decides as a collegiate body on importantmatters, particularly concerning differences of opinion between the federal ministers.

    The Federal Chancellor plays a key role in organizing the government and assigning government posts.

    It is at his/her proposal that the Federal President appoints and dismisses federal ministers. The Federal

    Chancellor is hence entitled to form a Cabinet. He/she also has the power to determine the basic

    portfolios of the individual federal ministers on the basis of the entitlement to determine general policy.

    This organisational power of the Federal Chancellor may also not be restricted by the parliament.

  • - 10 -

    The number of federal ministries has varied between 13 and 21 since the founding of the

    Federal Republic of Germany. The Federal Government has a total of approx. 23,000 staff

    members. The federal ministers decide whether a task is to be performed in the Ministry

    itself or assigned to subordinate federal authorities. As a rule, only matters of political

    significance, in particular preparing statutes, ordinances and other general regulations, are

    carried out in the Ministry. One task of the federal ministries is also to supervise

    subordinate federal authorities.

    Generally the federal ministries have no supervisory powers over Land authorities, theonly exception being the (few) cases of federal administration by delegation of authority

    (e.g. in the area of civil use of atomic energy). Here the Federation retains its responsibility

    for the matter. The Federation has possibilities for supervision and intervention in order to

    ensure that tasks are performed in compliance with the law and the principle of usefulness.

    Example of the organisation of a federal ministry:

    Organisation of a federal ministry 1)

    1) Other forms of organisation are possible (Directorates-General may be divided into Directorates; working units may take

    the form of a division, a working group or a project group).

    FFeeddeerraall MMiinniisstteerrMinister's Office

    Parliamentary State Secretary

    State Secretary State Secretary

    Directorate-General

    Central Tasks

    specializedDirectorate-

    General

    specializedDirectorate-

    General

    specializedDirectorate-

    General

    Division Division Division Division

    Division Division Division Division

    Division Division Division Division

    Officer for Gender Equity Staff Council

  • - 11 -

    In addition to the Federal Government, the other constitutional bodies - the Federal

    President, the German Bundestag (Lower House of Parliament), the Bundesrat (UpperHouse of Parliament) and the Federal Constitutional Court - have their own administrative

    apparatus. The largest of these belongs to the German Bundestag, with a staff each ofapprox. 2,100. The administrations of the other constitutional bodies, on the other hand,

    are made up of more than 200 staff each.

    The Federal Court of Audit is also one of the highest federal bodies. It is independent of

    the Federal Government. The Federal Court of Audit, with a staff of approx. 600, examines

    the economic viability and proper financing of the federal administrative budget as a body

    of financial control.

    Areas of federal administration

    The Federation possesses administrative authority only to the extent that the Basic Law

    expressly invests it with such authority by virtue of a specific context or of the nature of a

    matter. The scope of the Federation's own administration, known as direct federal

    administration, is hence strictly controlled. These are matters which are closely linked to

    the ability of the state as a whole to take action. Under the Basic Law, of the administrative

    areas dealt with by the federal administration, the following matters fall within the

    responsibility of the Federation:

    Foreign Service: The Foreign Service employs a staff of 8,700, incl. local staff, at

    home and in the 200 diplomatic missions abroad (embassies, consulates and

    permanent representations at international organisations).

    Federal financial administration: The areas of fiscal and customs administration,

    amongst others, fall within the remit of the federal financial administration. The

    customs system has a three-tier structure of authorities with intermediate

    authorities (regional finance offices) and local authorities (customs offices). At the

    same time, the regional finance offices head the financial administration of the

    Federation and the Lnder in their district. All in all, the financial administrationoversees a complicated division of tasks between the Federation and the Lnder,including local authority administration. The obligation to work together is

  • - 12 -

    intended to contribute to involving all levels of the federal state structure in the collection

    of state revenues. The Federal administration has a staff of 48,000 in this area.

    Federal armed forces (Bundeswehr) and the defence administration: The armedforces are not counted as part of the administrative apparatus because of their

    military functions; the administration of the Bundeswehr, however, whosefunctions include personnel and resource management, is included. The armed

    forces are made up of 186,600 professional and fixed-term military personnel

    (not including conscripts). The number of civilian staff in the federal armed forces

    is about 135,000.

    Federal waterways and shipping: The Waterways and Shipping Administration,

    with a staff of 17,000, constitutes a separate federal administration with

    intermediate authorities (Waterways and Shipping Directorates) and sub-

    authorities (Local Offices for Waterways and Shipping).

    Federal Border Police Authorities, Federal Criminal Police Office: The Federal

    Border Police (BGS) and the Federal Criminal Police (BKA) are federal policeforces. The Federation assumes police tasks as far as needed on the federal

    level. The main tasks of the 38,000 staff of the Federal Border Police include

    border management and surveillance, railway police tasks and the protection of

    air transport at larger airports as well as providing assistance to the Lnder attheir request. The Federal Criminal Police Office is a higher federal authority and

    as such responsible for the co-operation with the Lnder and for certain criminalpolice tasks. It has a total staff of 4,500.

    The intelligence services of the Federation are the Federal Intelligence Service

    (BND), the Federal Office for the Protection of the Constitution (BfV) and theMilitary Counterintelligence Service (MAD).

  • - 13 -

    The railways, postal and telecommunications services, as well as air traffic control, which used to be

    part of the Federal administrative apparatus, have been privatised, with the exception of regulatory

    and supervisory functions.

    The German railways have been transferred to Deutsche Bahn AG. Postal and telecommunicationsservices are also provided under private law by Deutsche Post AG, Deutsche Telekom AG andDeutsche Postbank AG. Air traffic control has been assigned to Deutsche Flugsicherung GmbH. Atotal of 1 million staff were employed in these areas in 1993, before privatisation started. The

    privatised enterprises still employ civil servants on the basis of interim provisions. The latter have

    however not been included in the statistical information on overall employment in the public service.

    3. The administration of the Lnder

    In addition to the local authorities, the Lnder are the major administration level inGermany with a total of 2.3 million staff in the public service of the Lnder. In Germany,the 16 Lnder can be divided into two categories:

    territorial states (Baden-Wrttemberg, Bavaria, Brandenburg, Hesse,

    Mecklenburg Western-Pomerania, Lower Saxony, North-Rhine/Westphalia,

    Rhineland-Palatinate, Saxony, Saxony-Anhalt, the Saarland, Schleswig-Holstein,

    Thuringia) and

    city-states (Berlin, Bremen and Hamburg).

    There is also a fundamental distinction for the Land administration between politicalactivities which are exercised by the Land government and the exercise of administrativetasks. In contrast to the federal administration, however, the focus is on administrative

    tasks. The Land Ministries, as the highest Land authorities, are hence much more involvedthan the Federal Ministries in the actual implementation of policies.

    The actual organisation of the Land administration is up to each individual Land. In spite ofthis autonomy, the Land administrations have developed along similar lines as a result of atwo-hundred-year tradition. Most Lnder with a large surface area have a three-tieredstructure of authorities with the highest Land authorities (Land Ministries) at the top,

  • - 14 -

    government commissioners or regional governments as an intermediate instance and the

    lower administrative authorities, some of which are also attached to the local

    administration (county district commissions and/or local authority offices), as state

    interfaces. Some of the smaller territorial states, as well as the city-states, do not have the

    intermediate levels. The city-states combine state and local administration. The Landgovernments (or Senates) carry out Land and local authority tasks at the same time.

    In addition to the general administrative authorities, the Land administration also hasspecial Land authorities (higher Land authorities, higher and lower special authorities).These special authorities have been established as tasks have been removed from the

    Ministries and the general administrative authorities. Special authorities have been

    primarily formed at central and lower levels.

    Without having their own sub-structure of authorities, the higher Land authoritiescarry out specific administrative tasks from one location for the whole Land(examples: the Land statistical offices, the Land criminal police offices, the Landoffices for the protection of the constitution, the Land offices for remuneration andpensions).

    Higher special authorities have the function of an intermediate authority betweenthe Ministries and the lower special authorities (examples: regional finance

    offices, regional education offices and forestry directorates).

    The lower special authorities at local level, which may be part of local authorities,are numerous and varied. They include the tax offices, forestry offices, mining

    offices, factory and trade supervision offices, school offices, health offices, state

    offices for university building, road construction offices, local offices for

    waterways and shipping, Land survey offices and agriculture offices. Stateenvironmental offices have been established as special authorities in some of the

    Lnder.

    In all the Lnder, the largest number of staff is employed in the educational sector withschools and universities, the police and the financial administration.

  • - 15 -

    In the academic year 2000/2001 a total of 785,000 teachers was employed at public

    schools (general and technical schools). The Ministries of Culture and Education

    of the Lnder are responsible for the internal administration of the schools, i.e. fortraining and appointing teachers, as well as for curricula and designing lessons,

    and for supervising schools. The Lnder's responsibility extends to all types ofschool, including vocational schools, and the supervision of private schools. The

    Lnder coordinate the mutual recognition of school qualifications, amongst othermatters, via the permanent institution of the Conferences of Ministers of Culture

    and Education. The local authorities are generally responsible for external school

    matters, i.e. for building and furnishing schools and providing teaching materials

    and administrative staff.

    Source: Federal Statistical Office, series 11, vol. 1, 2000

    Higher education institutions combine research, teaching and training for the new

    generation of academics. A system of different kinds of higher education

    institutions (e.g. universities, polytechnics (Fachhochschulen), vocationalacademies) offers people various possibilities of qualifying for a profession and

    gaining a degree. Within that system, education at universities is more

    theoretical, whereas technical college education is more practically oriented.

    Vocational academies combine practical training in a company with classroom

    studies. The higher education institutions are assigned to the academicadministration of the individual Lnder. Germany has 350 higher educationinstitutions with a total of 1.8 million students (2000). About 488,700 persons are

    employed at universities, Fachhochschulen and vocational academies, of whom219,300 work in the arts and sciences, including 38,000 professors (who enjoy

    special academic freedoms anchored in the Basic Law) and 269,400 are

    administrative, technical or other personnel. The university hospitals employ

    about 189,200 staff.Source: Federal Statistical Office, series 11, vol. 4.4, 2000

    In the area of law enforcement, the Lnder employ approximately 273,600 staff,of whom 228,000 are police officers. In the Lnder with a large surface area(territorial states), the authorities of the three levels of the general administrative

    apparatus are also responsible for fulfilling the duties of general police

  • - 16 -

    authorities; in some cases there is a fourth level of mayors who are also responsible for

    fulfilling the duties of local police authorities..

    With more than 153,600 public service staff, the financial administrative

    apparatus of the Lnder collects taxes, as well as a large proportion of otherlevies. The financial administrative apparatus also manages state assets and the

    state's commercial holdings.

    Public service staff in the direct Land service as per 30.06.2000

    Portfolio Staff in %

    Schools and pre-school

    institutions

    817,400 36.0

    Higher education

    institutions

    237,900 10.5

    Fiscal and financial

    administration

    153,600 6.8

    Judicial institutions 189,700 8.3

    Police 273,600 12.0

    Others 601,100 26.4

    Total 2,273,300 100.0Source: Federal Statistical Office, series 14, vol. 6, 2000

    4. The administration of local authorities

    The local authorities - municipalities/towns and rural districts (local authority associations) -

    are parts of the Lnder which have exclusive responsibility for regulating the structure oflocal administration and the territorial borders of the local authorities and districts in

    accordance with Land legislation. There are 440 rural districts and towns not belonging toa county and approx. 13,800 municipalities in Germany. The municipalities, local

    authorities and local joint authorities employ 1.57 million people. Enterprises organised

    under private law employ approx. 300,000 persons.

  • - 17 -

    The local authorities are subject to the supervision and - where they carry out state tasks

    - to the instructions of the Land authorities. The municipalities deal with local matters ontheir own responsibility. This self-government for local authorities is protected by Art. 28 of

    the Basic Law.

    Self-government for local authorities is a major element of the political order in Germany.

    The local authority constitutions of the individual Lnder provide for a variety of models fororganising the administrative apparatus. Municipality/district administrations are led by full-

    time civil servants. Depending on the type of the local authority constitution and the nature

    of the local authority, the official titles of these permanent civil servants differ (e.g. in

    municipalities: mayor or lord mayor, municipal councillor, city councillor or chief executive

    of a city; in rural counties: councillor or chief executive of a county). They are elected

    either by the local authority parliament or - increasingly - by direct vote. In addition, local

    authorities also perform state functions as charged. Most administrative matters that affect

    citizens are dealt with on the local level.

    Local authority administrations make up the third pillar of administration in Germany.

    Their tasks include above all the administration of construction in the broadest meaning of

    the word (incl. town planning, road building and housing), social and health services, as

    well as public facilities (e.g. swimming pools, kindergartens and sports facilities). The local

    authorities are also responsible for providing local public transport and refuse disposal and

    supplying the population with water, gas, electricity and district heating. These utilities are

    largely operated as enterprises organised under public law.

  • - 18 -

    Staff employed by municipalities,associations of municipalities and local joint authorities

    as per 30.6.2002

    Portfolio Staff in %

    General administration 249,000 15.8

    Public safety, law and order 115,000 7.3

    Schools 128,000 8.2

    Science, research and culture 86,000 5.4

    Social security 281,000 17.9

    Health, sport and leisure 84,000 5.4

    Construction and housing, transport 138,000 8.8

    Public institutions, promotion of economic

    development

    155,000 9.9

    Hospitals 278,000 17.7

    Others 58,000 3.7

    Total 1,572,000 100.0Source: Federal Statistical Office, series 14, vol. 6, 2000

    5. The indirect public administration

    Institutions with special tasks constituted under public law which are not incorporated into

    the direct state or local authority administration are part of the indirect public

    administration.

    These are largely the social insurance institutions. They are part of the public service

    because they are bodies and institutions under public law and provide their services in

    accordance with federal statutes. They are however self-governing, autonomous

    institutions in which the honorary governing boards are in most cases equally composed of

    representatives of employers and insured parties - in almost all cases, the group of the

    insured parties is represented by the trade and labour unions.

    Specifically, these are:

    the agencies responsible for the statutory pension insurance (i.e. of the generalsystem of pension, disability and surviving dependants insurance in Germany),

    namely the Federal Insurance Institute for Salaried Employees

  • - 19 -

    (Bundesversicherungsanstal fr Angestellte) and 17 Land Insurance Institute for SalariedEmployees (Landesversicherungsanstalten) responsible for the pensionsinsurance of wage-earners, with a total staff of 73,000,

    the employment administration, carried out by the Federal Institute forEmployment (Bundesanstalt fr Arbeit) with a main office, ten Land Offices ofEmployment and 181 employment offices, as well as a total staff of 92,000,

    the agencies responsible for the statutory health insurance and old-age nursing-home insurance (local health insurance funds, substitute health insurance funds,

    guild's health insurance funds, company insurance funds, etc.) with a total staff of

    139,000,

    the statutory accident insurance institutions (93 Berufsgenossenschaften and inthe public sector accident insurance funds (Unfallkassen) or the like) with a totalstaff of 30,000, and

    the federal miners' insurance fund (Bundesknappschaft), with a staff of 14,000.

    Additionally, the German Central Bank (Deutsche Bundesbank) and other legallyindependent institutions are part of the indirect public administration. The indirect public

    service employs a total staff of 488,000.

    The Deutsche Bundesbank, which has its headquarters in Frankfurt am Main and employsa total staff of 16,500, is an integral part of the European System of Central Banks (ESCB)

    within the Economic and Monetary Union.

    6. The non-public institutions

    Particularly in social and health services, the number of staff employed by the public

    agencies (i.e. by the Lnder and the local authorities or local authority associations) doesnot represent the total number of staff providing these services for citizens. To a

    considerable extent, non-public institutions are also highly active here, in particular church

    or other non-profit organisations, and to a lesser extent also commercial service providers.

  • - 20 -

    In 1998 a total of 573,000 staff was employed in the area of child and youth services

    (nursery schools, children's homes, youth centres, facilities for children and

    young people with disabilities, etc.). Public agencies employ 228,000 staff,

    followed by church agencies with a staff of 200,000. If institutions are operated by

    independent child and youth welfare agencies, public child and youth welfare

    agencies (run by counties and towns not belonging to a county, under Land lawalso municipalities) should not establish their own institutions. In 1998, about

    67% of kindergartens were operated by independent child and youth welfare

    agencies on the territory of the former West-Germany, whereas this figure was

    about 31% in the new Lnder.

    Approx. 1.11 million staff were working in hospitals in 2000, 1.05 million of themin general hospitals. Public hospitals employed 630,000 of these, the others were

    employed by hospitals operated by non-profit organisations or commercial

    enterprises.

    Approx. 45,000 teachers were working at a total of 2,326 independent private

    schools in the 2000/2001 academic year, teaching more than 560,000 pupils.The right to establish private schools is expressly provided by the Basic Law, and

    to some extent by corresponding provisions in the Land constitutions. The right toestablish private schools rules out a state monopoly on schools. Private

    secondary schools, known as alternative schools, also fulfil the requirement of

    compulsory school attendance. Alternative schools may have a special focus or

    function, for instance as confessional schools, reform schools, boarding schools

    or international schools. Alternative schools require approval from the school

    authorities.

    The number of higher education institutions operating as independent agenciesremains limited. The higher education system in Germany consists primarily of

    public higher education institutions of the Lnder. Of the 350 higher educationinstitutions approx. one-third is operated by independent agencies.

  • - 21 -

    7. The judiciary

    Judges are entrusted with judicial authority in accordance with Art. 92 of the Basic Law;

    this authority is exercised by the Federal Constitutional Court, by the Federal Courts

    provided for in the Basic Law and by the courts of the Lnder.

    Judicial power covers five separate branches of the court system: ordinary (civil and

    criminal) jurisdiction, administrative, financial, labour and social jurisdiction (Art. 95 (1) of

    the Basic Law). Added to these are the Constitutional Courts and special courts for certain

    professions (e.g. disciplinary tribunals for civil servants, judges and soldiers and those for

    lawyers and doctors). Courts-martial are only used for the armed forces abroad or on

    board ships of war and in wartime.

    Jurisdictional sovereignty is distributed between the Federation and the Lnder in such away that in each branch of the court system the highest courts are federal courts, and all

    other courts (with few exceptions) are Land courts. The structure varies within thebranches of the court system, in most cases it is a three-tier structure.

    Justice is administered by professional and honorary judges. The judges are independent

    in the exercise of their judicial office, and are subject only to the law (personal and factual

    independence, Art. 97 of the Basic Law).

    Professional judges are appointed for life. Their appointment ends on retirement (apart

    from judges at the constitutional courts who are appointed for a specific term of office; at

    the Federal Constitutional Court the term of office is 12 years, ending upon mandatory

    retirement at the age of 68.

  • - 22 -

    Judges and public prosecutors at federal and local level as per30.06.2000

    judges public prosecutors

    Federation 500 50

    Lnder 21,500 5,350Total 22,000 5,400

    Source: Federal Statistical Office, series 14, vol. 6, 2000

    Honorary judges act in criminal matters (as "lay judges") and at labour and social courts, as well as

    administrative courts of first instance; in civil jurisdiction only in the specific chambers for commercial

    matters. They have the same rights and duties in discussions and deliberations as professional

    judges. They are appointed for a specific term and may only be removed from office prematurely by

    judicial decision.

  • - 23 -

    II. Modernising the Public Administration

    The State and its administrative apparatus do not exist as ends in themselves. They exist

    to serve the citizens, who rightly demand that their tax money be spent wisely. Thatmeans: better services geared to the changed requirements of citizens and industry.

    1. Modern State - Modern Administration (www.staat-modern.de)

    In December 1999 the Federal Government launched the "Modern State - Modern

    Administration" programme. Business administration tools such as target agreements,

    cost-output accounting, controlling, budgeting, creativity management have helped

    increase the capacity, efficiency and transparency of the federal administration's activities,

    as the statistics clearly prove.

    By now 306 federal agencies are using cost-output accounting, which provides the

    necessary transparency of outputs and costs. To be fully effective cost-output accounting

    must be used in conjunction with controlling in order to gain relevant management

    information. While in 1998 only 25 agencies had set out to implement controlling concepts,

    today the number has risen to 215 agencies.

    Another particularly effective means to enhance the public administration's operational

    efficiency is competition through benchmarking. Benchmarking is an appropriate tool to

    encourage competition and promote continuous improvement. Therefore, several inter-

    and intra-ministerial benchmarking rings have been established since summer 2000.

    Benchmarking has been applied to areas such as personnel management, information

    technology and bonus procedures. Experience gathered from projects carried out so far

    shows that benchmarking is the appropriate tool to increase the quality and efficiency of

    the public administration.

  • - 24 -

    By 2002 more than 100 federal agencies were restructured. The number of agencies was reduced

    significantly, by a total of 90. In 1998 there were still as many as 654 federal authorities, while in early 2002

    this number had fallen to 562. At the same time the federal administration trimmed a significant number of

    jobs. On 1 January 2002 the federal administration employed 291,000 staff, compared to 310,000 on 1

    January 1998. Hence there were 6,000 fewer jobs within the federal administration than before German

    reunification in 1989. In this way, the federal administration is making a significant contribution to the

    necessary budget consolidation.

    With the "Modern State - Modern Administration" programme the Federal Government

    wants to extend the scope of action of the Lnder and strengthen local self-government. Inthis context a project to transfer more responsibilities to the Lnder has been launched. Ina first step, federal framework legislation has been revoked in 26 cases, giving the Lndergreater discretion in enforcing federal laws in certain areas. In a second step, an additional

    183 proposals of the Conference of Minister-Presidents for changes in the rules regarding

    the discharge of state tasks were examined. Of these the Federal Government approved

    107 proposals, in some cases under specific conditions; another 49 proposals have been

    or are now being taken into account in the framework of other projects. By early 2002,

    already 53 proposals had been implemented. The 183 proposals affected all key policy

    areas, such as financial, economic, environmental, social, agricultural, domestic, transport

    and housing policy. Now a Land can, for example, transfer local responsibility for thegranting of social allowances to the municipalities, whereas the old federal framework

    legislation allowed such responsibility to be transferred only to counties and towns not

    belonging to a county. The same applies to setting up examiners' commissions for master

    craftmen's qualifying examinations; under the new framework legislation, responsibility no

    longer lies exclusively with the higher Land authorities. Where possible the Federation hasnot designated a specific Land authority at all, thus leaving it to the discretion of theLnder to assign responsibilities and to organise their administration.

    Human resources are the key to boosting efficiency and effectiveness in the public sector.

    The effectiveness of an organisation in the public sector directly depends upon the

    effectiveness of its workforce. This requires targeted measures to enhance employees'

    ability and preparedness to carry out their tasks. The modernisation programme of the

    Federal Government has dedicated a specific and separate area of reforms just to "highly

    motivated staff".

  • - 25 -

    So the reform process aims above all at providing effective staff development targeted at

    making the most of the performance and creativity potentials of public service staff. Today

    all federal ministries have developed their own concepts to this end. They all use a jointly

    agreed framework based on key elements such as an institutionalised dialogue between

    superiors and staff, appraisals of senior staff, and plans involving the allocation of staff to a

    post or role.

    A modern administrative apparatus requires modern service regulations which encourage

    employees to take on responsibility and to render good performance. To this end the

    existing legal instruments must be constantly reviewed and adjusted, where necessary.

    Therefore the Federal Government's modernisation programme gives utmost priority to

    continuing the service regulations reform.

    2. BundOnline 2005 (www.bundonline2005.de)

    Efficient and effective administration is no longer conceivable without the use of

    information technologies. In the past, hardware acquisition was the primary concern; with

    e-government the use of the new media has taken on a new quality and significance.

    With the "BundOnline 2005" e-government initiative, the Federal Government has pledged

    to provide online all services of the federal administration that can be placed on the

    Internet by 2005. The BundOnline 2005 programme is an important building block in the

    Federal Government's policy to turn Germany into an information society. BundOnline

    2005 will provide citizens, the business community, the science and research sector and

    other administrative authorities with a simpler, faster and more economical means of using

    the federal administration's services.

    Following a comprehensive review, the Federal Government adopted an interministerial

    implementation plan on 14 November 2001, covering the whole range of federal

    administrative services.

    Today, 21 services are fully available on the Internet already.

    Here are a few examples: Already today it is possible to repay via the Internet grants

    received under the Federal Education Assistance Act. The 500,000 people who are

  • - 26 -

    currently required to repay their scholarship grants can use the Internet to communicate

    with the responsible clerk, file applications for early repayment, partial or total waiver of

    payment or deferment of payment. Involving an overall repayment volume of 0.6 billion

    annually, the Internet thus provides enormous potential savings of time and cost. Since 1

    November 2000, approx. 12,000 online applications have been filed.

    The electronic tax return form "ELSTER" was introduced by the Federation and the Lnderto make the submitting and processing of tax returns more user-friendly and less time

    consuming through the use of modern communications technology. By early 2002 a total

    of 490,000 tax returns had been sent in electronically and more than 5.6 million

    applications for tax statements had been filed electronically. Since February 2001, the tax

    offices have offered official, interactive tax forms that can be filled out and sent online,

    supported by a tax filing program to guide taxpayers through the process. This marks a

    further step on the way to fully electronic, paperless tax returns and paperless tax-

    assessment notices.

    The services offered by the federal administration can be accessed centrally via the

    service portal of the Federal Government at www.bund.de. The Federal Minister of the

    Interior, Otto Schily, launched the portal at the CeBIT computer fair in March 2001. The

    service portal now includes more than 2,000 pages and more than 1,300 institutions and

    agencies of the Federation. A powerful search engine and a permanently updated

    catalogue facilitate the systematic search for authorities' web sites, addresses, contacts,

    and special information. In the second development stage, the portal's focus will move

    beyond more information-oriented content towards genuine electronic administration

    services.

    Modernisation is a major concern of both public and the federal administration, public

    service staff as well as elected officials and citizens. Progress in implementing the

    government programme "Modern State - Modern Administration" is being documented at

    www.staat-modern.de. Up-to-date information about the e-government initiative

    "BundOnline2005" is available at www.bund.de. Visitors can send e-mails directly to

    experts working on individual projects or discuss issues on the reform agenda in forums or

    chat rooms. More than 10 million hits on these two pages since December 1999 offer proof

    that people are making use of this opportunity for dialogue.

  • - 27 -

    III. The foundations of employment in the public service

    Art. 33 Basic Law

    (Civic rights)

    (1) Every German shall have in every Land the same civic rights and duties.

    (2) Every German shall be equally eligible for any public office according to his aptitude,

    qualifications, and professional achievements.

    (3) Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired

    in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by

    reason of adherence or non-adherence to a particular religious denomination or philosophical creed.

    (4) The exercise of sovereign authority on a regular basis shall, as a rule, be entrusted to members

    of the public service who stand in a relationship of service and loyalty defined by public law.

    (5) The law governing the public service shall be regulated with due regard to the traditional

    principles of the professional public service.

    Public service staff (as per June 30, 2000)

    civil servants, judges 1,616,000 ( 33%)

    Professional and fixed-term

    military personnel

    186,600 ( 4%)

    salary earners 2,351,500 ( 49%)

    wage earners 681,200 ( 14%)

    Total 4,835,300 (100%)

    Source: Federal Statistical Office, series 14, vol. 6, 2000

  • - 28 -

    1. Employment in the public service

    In the Federal Republic of Germany, civil servants, judges and military personnel, as well

    as public employees (salary earners and wage earners in the public service) are employed

    to perform state tasks.

    In accordance with Art. 33 (2) Basic Law every German shall be eligible for any public

    office according to his aptitude, qualifications, and professional achievements.

    The exercise of State authority on a regular basis shall, as a rule, be entrusted tomembers of the public service who stand in a relationship of service and loyalty governedby public law (Art. 33 (4) of the Basic Law), that is to civil servants. The rights and duties ofcivil servants are governed by federal law, which means that the parliament determinesthe rights and duties as well as the remuneration and pensions of civil servants. Theservice of judges and military personnel, like that of civil servants, is governed by publiclaw.

    In contrast, public employees are employed on the basis of a contract under private law.

    General labour law applies to them - as to all employees in Germany. Specific working

    conditions, however, are set out in collective agreements negotiated between the public

    employers (Federation/the Lnder/local authorities) and the responsible trade and labourunions.

  • - 29 -

    Members of the Federal Government, i.e. the Federal Chancellor and the federal ministers are not civil

    servants; their office is governed by public law and aimed at exercising governmental functions. Having said

    that, this office under public law has developed from the basis of employment as a civil servant and is

    governed by law, specifically the Act governing Federal Ministers. As office-holders who directly report to the

    parliament the federal ministers manage their departments independently and on their own responsibility in

    the framework of the general policy determined by the Federal Chancellor. They are not bound by

    instructions in individual cases and are not subject to any disciplinary power. Similar arrangements exist in

    the Lnder for members of the Land governments.

    Depending on the size of their departments, the Cabinet members are assigned one or two parliamentary

    state secretaries who hold the title "Minister of State" at the Federal Chancellory and the Federal Foreign

    Office. Generally they must be members of parliament. Only direct assistants to the Federal Chancellor may

    assume this function even if they are not members of parliament. They represent and support the federal

    minister in fulfilling political and technical tasks, in particular in the plenary and in the committees of the

    German Bundestag, in the Federal Cabinet and in public. The office of Parliamentary State Secretary is alsogoverned by public law.

    For information about remuneration and pensions of parliamentary state secretaries and of members of the

    Federal Government see:

    Distinction between civil servants and public employees

    According to Art. 33 (4) of the Basic Law the exercise of state authority as a permanent

    function shall as a rule be entrusted to civil servants (reservation of function).Today this is

    generally no longer understood as being limited to what was known in the past as

    authoritarian administration. The public service is intended to guarantee sound

    administration based on expertise, professional ability and the loyal fulfilment of duties,

    and to ensure that essential tasks are continuously carried out in the public's interest.

    Therefore it is mainly civil servants who are employed in core areas of traditional

    administration, above all in supervisory positions and in areas involving the exercise of

    state authority. But civil servants are also employed in many areas of benefits

    administration, and most teachers are civil servants, too. In contrast, public employees are

    employed in health and social services and in technical professions.

    Since the relation between rule and exception is defined in the Basic Law, the domains of

    civil servants and public employees are delimited in general terms, which leave some

  • - 30 -

    room to manoeuvre in individual cases. Accordingly, the functional distinction between

    civil servants and public employees may be less clearly marked.

    The position of public employees is both secure and of equal status with that of civil

    servants. This is reflected by the fact that the legal status of civil servants on the one hand

    and public employees on the other have converged in many aspects.

    At the same time, substantial differences remain between the two status groups, in

    addition to the reservation of function defined by Art. 33 (4) of the Basic Law: notably, the

    fact that the duties of civil servants which are at the core of their special relationship of

    loyalty apply to all civil servants in the same way, whereas the duties of public employees

    are dependent upon their function. In addition to the ban on strikes for civil servants, this

    regulation is to ensure that core tasks of public administration are fulfilled reliably and in

    the interest of citizens.

    Staffing trends

    The number of public service staff on the territory of the former West Germany grew

    significantly until the beginning of the 1990s. The reunification of Germany naturally

    resulted in a considerable increase from 3 October 1990 onwards. Since 1991, however,

    the number of staff has declined continuously.

    The following figures refer to the public service at federal, Lnder, and local level and tothe indirect public service. The staff employed by the German railways and the postal

    services are not included because privatisation of these areas makes comparison

    impossible. Until 1990, the figures refer to the territory of the former West Germany.

    The increase in the numbers of staff up to 1990 was due in particular to the expansion in

    the area of schools and higher education, but also in the social services and the police. In

    the ensuing period - after the increase in the number of staff caused by incorporating the

    public service of the former GDR - tight budgets and the modernisation of the federal and

    local administrations led to a decrease in staff numbers. This reduction particularly

    affected the new Lnder , which had to adapt the administrative structures. Theprivatisation of local authority services had a similar effect; in addition the federal public

    service was affected by job cuts in the armed forces (military and civilian personnel). This

    development includes a greater reduction in the number of public service jobs, while the

    number of part-time staff has increased.

  • - 31 -

    1960 1970 1980 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000Year

    Staff number in 1,000sFederal Republic of

    Germany

    of whom:

    women

    of whom:

    on the territory of the

    former West Germany

    on the territory of the

    former East Germany

    of whom:

    civil servants, judges

    salary earners

    wage earners

    professional and fixed-

    term military staff

    of whom:

    full-time staff

    part-time staff

    2,252

    720

    772

    610

    150

    2,108

    143

    3,008

    954

    1,113

    710

    232

    2,691

    318

    3,814

    1,277

    1,527

    773

    237

    3,275

    539

    4,133

    1,382

    1,728

    779

    244

    3,362

    771

    5,600

    2,788

    4,171

    1,429

    1,390

    2,822

    1,131

    257

    4,677

    924

    5,582

    2,813

    4,197

    1,385

    1,458

    2,774

    1,104

    246

    4,635

    947

    5,448

    2,749

    4,195

    1,253

    1,511

    2,708

    998

    231

    4,450

    998

    5,361

    2,714

    4,174

    1,187

    1,556

    2,647

    945

    213

    4,304

    1,057

    5,251

    2,670

    4,113

    1,139

    1,587

    2,585

    884

    194

    4,185

    1,066

    5,165

    2,632

    4,064

    1,101

    1,607

    2,535

    832

    191

    4,098

    1,067

    5,062

    2,576

    4,010

    1,052

    1,624

    2,470

    776

    192

    3,985

    1,077

    4,977

    2,539

    3,956

    1,022

    1,619

    2,425

    741

    191

    3,863

    1,114

    4,891

    2,501

    3,902

    989

    1,619

    2,374

    708

    190

    3,729

    1,162

    4,835

    2,487

    3,865

    970

    1,616

    2,352

    681

    187

    3,626

    1,209

    Source: Federal Statistical Office, series 14, vol. 6, 2000

    Total public service staff in Germany (in 1000)(figures for 1960-1991 refer to former West Germany)

    5 600 5 582 5 448 5 361 5 251 5 165 5 062 4 977 4 891

    2 252 3 008

    3 814 4 1334835

    1960 1970 1980 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

    Staffing trends since 1991

    0

    1000

    2000

    3000

    4000

    5000

    6000

    1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

    total staff full-time staff women part-time staff

    number in 1000

    year

  • - 32 -

    Equal treatment of women and men in the public service

    "Gender Mainstreaming" (www.gender-mainstreaming.net)

    Germany has well-developed institutional and legal instruments to guarantee the equal

    treatment of women and men. Art. 3 (2) of the Basic Law stipulates that the state shall

    promote the actual implementation of equal rights of women and men and take steps to

    eliminate existing disadvantages.

    The following diagrams illustrate the proportion of women in the public service in Germany.

    In order to achieve the socio-political aim to increase women's participation in decision-

    making, there is need for further action, particularly to increase the number of women in

    supervisory positions.

    The public service employed a total of 4,835,300 staff in 2000 (4,648,700 excluding

    military personnel), of whom 2,486,700, or 51.4%, were women. The proportion of women

    in the different groups of public service staff differs; in the group of civil servants and

    judges they make up 39%, in the group of salary earners 68%, in the group of wage

    earners 37%, and in the case of professional and fixed-term military personnel 2.1%.

    Source: Federal Statistical Office, series 14, vol. 6, 2000

    0 10 20 30 40 50 60 70

    Civil servants, judges

    Salary earners

    Wage earners

    Military personnel

    Total

    Proportion of women in %

  • - 33 -

    With its Cabinet decision of June 1999, the Federal Government acknowledged the equal

    treatment of women and men as an overall guiding principle and agreed to promote this

    effort known as "Gender Mainstreaming" in all federal ministries and agencies. Therefore,

    the Joint Rules of Procedure of the Federal Ministries contain the obligation for all federal

    ministries to comply with this principle in all political, legislative and administrative

    activities.

    Gender Mainstreaming is an internationally recognised term for taking into account the gender

    perspective in all decision-making processes. According to the principle of gender mainstreaming, men's

    and women's different cultural-historical positions in society and the resulting consequences must be

    recognised and taken into account. Just as the cost factor, for example, has to be considered when

    deciding upon publicly funded measures, the impacts of socio-cultural gender roles must be taken into

    account. It is crucial to note that apparently neutral measures affect women and men in different ways.

    Gender mainstreaming reveals socially conditioned gender roles and the different realities of the lives of

    women and men. The degree to which the gender perspective is taken account of is a major criterion for

    assessing the appropriateness and quality of a specific measure.

    But gender mainstreaming is more than just a political appeal. When the Amsterdam Treaty went into

    force on 1 May 1999, it made the implementation of gender mainstreaming legally binding upon the

    member states of the European Union. Art. 2 and Art. 3 of the Treaty establishing the European

    Community (TEC) oblige all member states to pursue an active and integrated policy aimed at achieving

    equality between men and women in the sense of gender mainstreaming.

    Gender mainstreaming does not replace the advancement of women.

    It should rather be seen as a means that adds to specific measures for achieving equal

    rights and treatment of men and women.

    The Law on the Enforcement of Equality between Men and Women of 30 November 2001,

    aims at actually implementing equality in all public service areas. This law, which also

    applies to the federal courts, replaces the Law on the Advancement of Women which was

    adopted in the framework of the Second Law Ensuring Equal Rights for Women of 1994. It

    contains the obligation to appoint a commissioner on women's affairs who is to be elected

    by secret vote by the female staff. She has the task of promoting and monitoring the

    implementation of the Law on Equality between Men and Women and all relevant related

    measures taken by the employer.

  • - 34 -

    In order to actually enforce equality between men and women the law provides that

    women who are equally suitable, qualified and capable as men shall be given preferential

    treatment in areas where they are underrepresented. This applies to training, recruitment,

    employment and promotion. With regard to indirect discrimination, the law expressly

    prohibits conducting selection processes or application interviews in a way that puts

    women at a competitive disadvantage. The Lnder have adopted similar rules for theiradministrations.

    These measures have substantially increased equality between men and women, and the

    state in its capacity as employer is fulfilling its obligation to act as a role model in this

    respect.

    2. Eligibility for the public service

    Eligibility for the German public service is governed by the Basic Law: In accordance with

    the criteria of aptitude, qualifications and professional achievements, every German is

    equally eligible for the public service. This applies in the same way to permanent

    employment of civil servants or public employees. The principle of merit as defined by

    constitutional law means that:

    in order to become a civil servant, the applicant must possess the necessary

    qualification for his/her desired career path.

    in order to become a public employee, the applicant must possess the

    qualification required for the specific function.

    This also applies to job applicants from other Member States of the EU. In accordance

    with the Community rules on the freedom of movement, if applicants are suitable and

    qualified, they are equally eligible for the German public service, with the exception of

    those positions which are reserved for German nationals.

  • - 35 -

    For appointment as civil servants nationals of Member States of the European Union are considered to have

    the same status as Germans within the meaning of Art. 116 of the Basic Law. As an exception to this basic

    rule, only Germans are eligible for positions requiring the exercise of public functions which, because of their

    specific content, must be performed by Germans only. In individual cases, i.e. in relation to the function in

    question, a decision must be taken as to whether it is necessary for the function to be performed by German

    nationals. The Federation and the Lnder have agreed on recommendations for the application of the law inrelation to functions reserved for Germans permitting employment of nationals of other Member States of the

    EU reaching far into areas which, in accordance with rulings of the European Court of Justice, could be

    reserved for Germans.

    The eligibility requirements to be adhered to in hiring civil servants are largely the same for

    all areas of the administration. In addition to the general requirements, such as loyalty to

    the Basic Law and personal integrity, civil servants must also have the necessary training

    and educational qualifications for the individual classes of service and subject areas.

    Such a system of service classes or formal preconditions for eligibility do not exist in the

    law on public service employees. Applicants are generally employed on the basis of their

    individual knowledge and abilities alone. Suitability for the specific job is decisive.

    Recruitment to the public service is also generally conditional on a vacancy announcement

    so that the right of equal access to public offices is guaranteed.

    Suitable candidates for the announced vacancy are chosen by means of a selection

    process. The German public service has no central recruitment competitions, however.

    Each authority is responsible for conducting its own recruitment and hiring, i.e. there are

    no generally binding rules for the form of the selection procedure. Added to this is the fact

    that, in the federal administration, each federal ministry is itself responsible for staffing.

    Each ministry is therefore responsible for selecting and hiring new staff and may establish

    independently how applicants are to be selected. This responsibility for human resource

    matters derives from the ministerial principle, according to which each federal minister

    manages the business of his/her department independently and on his/her own

    responsibility.

    Recruitment to the public service is on principle conditional on the existence of a vacancy.

    The parliaments at federal, local and regional level have the right to decide, within the

  • - 36 -

    framework of their budgetary authority, on the number and distribution of public service

    posts. In accordance with budgetary law, human resources are not managed according to

    the available funds, but according to established posts. On principle, the budgetary

    authority must approve each post before someone can be hired into that post.

    This highly specific budgetary procedure in the personnel area arose from the special

    status enjoyed by civil servants under German public service law. The basic impossibility

    of dismissal and the public employers' duty to provide maintenance, through to pensions

    for civil servants and their dependants, give rise to payment obligations which typically last

    for decades. The recruitment of a civil servant therefore has a considerable financial

    impact. Establishing a post creates the necessary authorization to spend money over the

    entire period of employment. This procedure applies to salary earners accordingly, sincethey are, as a rule, also permanent employees, and the parliament is able to control staff

    numbers and their composition by managing the number and distribution of posts.

    This rather inflexible system has been improved in the course of modernising the federal

    budget law. Starting with the budget for the fiscal year 2001, exceptions may be made in

    the case of pilot projects. Known as the experimentation clause, this measure is intended

    to establish the budget principle as a priority also in human resource management.

    According to this principle, the law will only define a staffing framework within which the

    individual authority can pursue a flexible human resource policy in its own responsibility

    and according to its financial means.

    3. Foundations of the employment of civil servants

    History

    The roots of the German public service date back to the 18th century when the servants of

    the princes became servants of the state. Although the personal attachment to the

    monarch or ruler was not dissolved, such service was now directly linked with the well-

    being of the state. This expanded obligation to serve the common good and the idea of an

    objective legal order as regards the monarch, and also later as regards the political

    parties, the parliament and the government, contributed at an early date to the public

    service's particular self-image and professional role model. The accompanying process of

  • - 37 -

    professionalising the administration in the early 19th century provided the foundation for

    the modern public service.

    After the end of the monarchy, the Weimar Constitution of 1919 ensured the non-partisan

    public service and the civil rights of civil servants in its Art. 130: "Civil servants shall be

    servants of society, not of a party. All civil servants shall be guaranteed the freedom of

    political opinion and freedom of association". It was these rights and freedoms in particular

    which were disregarded by the Nazi regime between 1933 and 1945. The Basic Law of

    1949 re-established the foundations of the professional public service, particularly by

    reserving for civil servants the right to exercise sovereign authority (Art. 33 (4)) and by

    observing the traditional principles of the professional public service (Art. 33 ( 5)).

    Legal basis

    The power to legislate for the public service lies primarily with the Federation.

    The Federation is responsible for regulating the legal status of civil servants, judges and

    military personnel in the service of the Federation and the direct federal bodies under

    public law. In addition it may also issue framework regulations governing the legal status of

    all other civil servants and judges. These framework regulations contain guidelines for

    legislation by the Lnder, and must be specified and implemented by the respective Landparliaments in order to have the force of law for civil servants and judges in the service of

    legal entities under public law under their supervision (in particular the local authorities).

    Not least because of these framework provisions, civil servants' employment is largely the

    same in the Federation and in all Lnder, although there are some 16 statutes relating tocivil servants and Land judges, in addition to the Act on Federal Civil Servants(Bundesbeamtengesetz), the Act Defining the Scope of Civil Servants' Rights and Duties(Beamtenrechtsrahmengesetz) and the German Judiciary Act (Deutsches Richtergesetz).

    Most importantly, the Federation has the power to legislate on matters regarding

    remuneration and pensions. This is why the Civil Servants' Remuneration Act

    (Bundesbesoldungsgesetz) and the Act Governing Civil Servants' Pensions andAllowances (Beamtenversorgungsgesetz) also apply directly (not only as frameworkregulations) to civil servants employed by the Lnder and local authorities. Provisionswhich apply nation-wide generally require approval by the Bundesrat (upper house ofparliament).

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    The Federal Government has to consult with the umbrella organisations of the trade and

    labour unions and professional associations of civil servants and judges when preparing

    provisions relating to civil servants and judges. As a certain compensation for the lack of

    power to negotiate collective agreements, this right of participation of these organisations

    goes beyond a mere right to be heard. It gives the trade and labour unions the opportunity

    to take an active part in the preparatory phase of statutes, ordinances, administrative

    regulations and directives by means of comments and proposals of their own. If the

    proposals are not taken into consideration, in the case of statutes and ordinances the

    umbrella organisations' counterproposals are listed in a supplement to the draft regulation,

    and thus brought to the attention of the legislator. The decision as to the final content of

    the regulation however is always the prerogative of the legislator.

    The umbrella organisations at the federal level are the German Civil Servants Association

    (DBB), the German Trade and Labour Unions Federation (DGB), the German JudgesAssociation (Deutscher Richterbund e.V.), the Federation of German AdministrativeJudges (BDVR) and the Christian Trade and Labour Unions Association (CGB); forregulations relating to military personnel the German Federal Armed Forces Association

    (Deutscher Bundeswehr Verband).

    In some cases, other trade unions of civil servants, in particular the police unions, are

    involved as umbrella organisations in the Lnder.

    Types of public service employment

    Civil servants have a special relationship of service and loyalty governed by public law.

    Because of Germany's federal structure, the local and regional authorities, i.e. the

    Federation, the Lnder and the municipalities, are the public employers. In addition, civilservants may also work for public law corporations, institutions or foundations under state

    supervision.

    The civil servant with life tenure represents the standard type of civil servant. There are

    also civil servants with a set tenure if the function is assigned only for a limited period of

    time. Civil servants who have not completed their training are employed with the revocable

    status of "civil servant in preparatory service"; at the beginning of their employment civil

    servants are employed on probation.

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    Special provisions apply to individual groups of civil servants with a special legal status.

    These are

    local government officials who have been elected in a municipality either by the

    people or a local government body (local council) and appointed as senior civil

    servants on a temporary basis (e.g. mayor, municipal commissioners).

    Accordingly, this is a small group of people restricted to the top level of the

    respective local authority administrations. The legal status of local government

    officials elected for a limited period is characterised both by the ideas contained

    in civil servants law and by ideas related to local authority policy. It is primarily

    determined in accordance with the Lnder statutes relating to civil servants, butcontinues to be affected also by local provisions on appointments, positions and

    functions.

    Politically appointed civil servants who hold an office for the exercise of whichthey must be permanently in agreement with the fundamental policy of the

    government, and hence can be placed in temporary retirement at any time

    without stating reasons. The total number of politically appointed civil servants is

    defined by law and is relatively small. Only 400 of the 132,600 civil servants in

    the direct federal public service are political appointees. In the federal

    administration these include state secretaries and directors general in the

    ministries, senior civil servants in the Federal Foreign Office and in the

    intelligence services (Office for the Protection of the Constitution, Federal

    Intelligence Service) and the president of the Federal Criminal Police Office.

    Rights and duties

    The public administration plays a key role in securing the present and future existence of

    the state through best fulfilment of essential public tasks. The state has to ensure fulfilment

    of these tasks particularly in the process of globalisation and growing European

    integration. For this reason, the authors of the Basic Law assigned this task to

    professional civil servants who ensure, based on their expertise and loyal service, the

    stability of the administrative apparatus and thus serve as a counterweight to the political

    powers shaping the state.

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    The employment relationship of civil servants is one of service and loyalty characterised

    by commitment to the good of the people and the body politic. The crucial element of this

    particular employment relationship is the civil servant's commitment to public service for

    his/her entire working life, which requires a high level of professional achievement, a

    sense of responsibility and commitment to the common good.

    The rights and duties which shape the employment relationship of civil servants ensure

    that public interest takes priority over the interests of specific groups or their own interests.

    Above all, it is this special employment relationship of civil servants which the Basic Law

    sees as a guarantee that the democratically determined will of the body politic is actually

    enforced.

    More specifically: Civil servants have to fulfil their tasks fairly and without partisanship and

    consider the general good in exercising their office. In particular, they are to avoid any

    suspicion of seeking their own advantage. On principle, they may not accept rewards or

    gifts.

    Civil servants are to advise and support their superiors, carry out the latters' orders and

    follow their general guidelines. Their duty of obedience does not however release them

    from full personal responsibility. They must examine the lawfulness of each official act.

    Civil servants must report any reservations as regards the lawfulness of an official order to

    their immediate superiors without delay (duty of remonstration). If the order is upheld

    without the reservations of the civil servant being remedied, they are to turn to the next

    higher level. If that superior confirms the order, the civil servant must carry it out. In this

    case, he/she is released from any personal responsibility. The duty to obey ceases to

    apply in any case in which the civil servant would violate human dignity or commit a

    criminal or administrative offence by carrying it out. The duty of obedience and the duty of

    remonstration serve to ensure the public administration's ability to function, which

    otherwise would be impaired if every civil servant were in a position to refrain from carrying

    out an official act because of reservations as to the lawfulness of this act.

    Civil servants must show their support for the free, democratic basic order as defined in

    the Basic Law through their whole conduct and work to uphold it. They may engage in

    political activities as allowed by the Basic Law, but may not express any political opinions

    when performing the duties of their office and must in other respects exercise the

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    moderation and reservation in political activities emerging from their position in society

    and in consideration of the duties of their office.

    Like all citizens, civil servants have the basic right to form associations and societies. They

    may do so without restrictions and may defend their interests together. They have no right

    to strike, however. The Basic Law provides that, because of their special obligations, civil

    servants are entrusted to secure and safeguard the administrative functions. A strike

    would be incompatible with this and would be directed against the parliament, the

    democratically elected body that adopts laws governing civil servants' remuneration and

    working conditions and in doing so has to pay due respect to the mutual relationship of

    service and loyalty. Hence the democratic body politic is strengthened if civil servants

    waive the right to strike upon entering this special relationship of loyalty because of their

    special commitment to the general good.

    In any case, the ban on strikes does not mean that concerns expressed by trade unions

    concerning employment conditions are ignored. The opposite is the case: Their concerns

    are represented by umbrella organisations of the public service as part of their role in

    preparing general rules for the public service.

    The fulfilment of their constitutional task not only requires that civil servants are bound in a

    particular way by their duties but also that they are granted rights which place them in a

    legally and economically autonomous position enabling them to fulfil the duties of their

    office according to the principles of the rule of law and to remain unaffected by party

    interests, without fear or threat to their livelihood. Above all, such autonomy is guaranteed

    by the civil servants' life tenure, appropriate remuneration and retirement benefits

    (maintenance principle) and by their right to be allocated to an appropriate post or role. In

    addition, civil servants have the right to social and medical assistance and are entitled to

    claim protection for themselves and their families from their employer, both during and

    after their employment.

    Civil servants' law defining these rights and duties is not a straitjacket. Instead, civil

    servants' law is constantly adapted to modern developments, while maintaining its core

    substance. For example: the promotion of mobility and part-time work, EU citizens'

    eligibility for civil servant status, initial allocation of managerial posts on probation or for a

    set period of time, and more flexible and merit-based remuneration.

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    Disciplinary law

    The disciplinary law deals with the consequences of service violations. While the duties of

    civil servants are defined in the statutes governing the rights and duties of civil servants of

    the Federation and the Lnder, the disciplinary law stipulates the consequences of suchviolations and the procedures.

    With the coming into force of the new Federal Disciplinary Act for federal civil servants on

    1 January 2002, the disciplinary law was thoroughly reviewed and adjusted to the

    requirements of a modern public administration and administration of justice.

    Disciplinary considerations are always based on the provisions of the Law on Federal Civil

    Servants, or the applicable Land law on civil servants, according to which civil servantscommit a disciplinary offence if they breach their duties intentionally or negligently. If there

    is sufficient reason to suspect a breach of duty, the employer is obliged to institute

    disciplinary proceedings and to establish the facts in question during this procedure. After

    the investigation a decision has to be taken as to whether the proceedings should be

    closed or disciplinary action should be taken against the civil servant.

    The disciplinary law provides for five disciplinary measures which, after a due assessment

    of the circumstances, may be imposed on a civil servant depending on the seriousness of

    the offence: reprimand, fine, reduction of remuneration, demotion and dismissal from

    service. However, dismissal from service is imposed only if the civil servant has lost the

    confidence of his/her employer or of the general public following a serious violation of duty.

    The law provides for only two disciplinary measures applying to retired civil servants:

    reduction or deprivation of retirement benefits.

    Using what is known as a disciplinary order, superiors themselves may impose a

    reprimand, a fine or a reduction of benefits. A disciplinary order is an administrative act

    which may be legally contested via objection, action for a recision, or - under certain

    conditions - appeal on questions of fact or of law.

    If the employer thinks that demotion, dismissal from service or deprivation of retirement

    benefits should be imposed on the civil servant concerned, he/she may not impose this

    measure himself/herself but has to bring a disciplinary action before the competent

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    administrative court which will then rule on the disciplinary measure. The court decision

    may be appealed on questions of fact and, under certain conditions, on questions of law

    only.

    Depending on the individual circumstances, it may be necessary to suspend a civil servant

    from official duties already before an unappealable decision has been taken in the

    disciplinary procedure. In addition to the possibility p