Is the civil service still in keeping with the times?

Dossier / Travail , 2009 , 27 Pages , Note: 2,3

Organisation et administration - Divers

Changing economic conditions, global financial crises and deficit-ridden budgets at the state and federal level are repeatedly giving rise to discussions about the meaning and purpose of the civil service. But it is also the public that no longer accepts the special features of civil service law uncritically. It is primarily financial considerations that give rise to calls for the abolition or at least limitation of the civil service to a core area of government tasks. However, this discussion, which is also emotional in parts, fails to recognize the special legitimacy that is based on the special requirements for state services and entitlements. The civil service is still an integral part of a modern state.

The two aspects are indispensably intertwined. It is imperative, however, that the civil service does not disguise itself from social development trends, but rather takes them up, uses them as an opportunity for change and is open to them. It also seems to be in the nature of things, however, that criticism of civil servants does not always exist in principle, but seems to depend on developments over time. This phenomenon can primarily be observed whenever there is a crisis in the economy. Then the discussion about reducing bureaucracy and the demand for "less government" begins. Of course, this is only the case where the state does not provide any services. In the Federal Republic of Germany, civil service and the public sector are regarded as a special feature. With 1.7 million civil servants and 3.3 million salaried employees nationwide, the proportion of civil servants in the public sector is much lower than in other European countries.

The extent to which the employment of white-collar workers in the public sector is actually more cost-effective than that of civil servants remains controversial. It is a little-studied scientific field so far. During the civil servant's active phase, the state does not have to pay any social benefits and only has to grant the civil servant an allowance in the event of illness.

Table of contents

1. Introduction

2 Historical development of the professional civil service

3 Constitutional considerations
3.1 Reservation of function under Art. 33 sec. 4 GG
3.2 The traditional principles of the professional civil service (Art. 33 sec. 5 GG)
3.3 Comparison: Civil servants and civil servants

4 Pros and cons of the professional civil service
4.1 Contra arguments
4.2 Pro arguments

5 General information on reform considerations in the public sector
5.1 Performance-based payment
5.2 Study Commission for the Reform of the Civil Service
5.3 Expert Commission on Criticism of State Tasks (so-called "Scholz – Commission")
5.4 Bull – Commission

6. Conclusion

List of abbreviations

List of sources and literature

1. Introduction

Changing economic conditions, global economic financial crises and deficit budgets of the federal states and the federal government repeatedly give rise to the discussion about the meaning and purpose of the professional civil service. But it is also the public that no longer uncritically accepts the special features of civil service law. First and foremost, it is financial considerations that give rise to the demand for the abolition or at least limitation of the professional civil service to a core area of state tasks.

However, this discussion, which is also emotional in parts, fails to recognize the special legitimacy that has arisen. based on the special requirements for state benefits and entitlements. The professional civil service is still an integral part of a modern state. Both aspects are inextricably interlinked. However, it is imperative that the professional civil service does not disguise social development tendencies, but takes them up, uses them as an opportunity for change and is open to them. However, it also seems to be in the nature of things that the criticism of the officials does not always exist in principle, but seems to be dependent on temporal developments. This phenomenon can be observed first and foremost whenever there is a crisis in the economy. Then the discussion about the reduction of bureaucracy and the demand for "less state" begins. Of course, only where it does not provide any services. In the Federal Republic of Germany, the civil service and the civil service are regarded as a special feature. The proportion of civil servants with 1.7 million civil servants and 3.3 million employees nationwide is much lower than in other European countries.¹.

The extent to which the employment of employees in the public sector is actually more cost-effective than civil servants remains controversial. So far, this is a little-studied scientific field. During the active phase of the civil servant, the state does not have to pay social benefits and only in the event of illness grant the civil servant an allowance. On the other hand, the pensions payable to retired civil servants, for which the state has only been building up a pension reserve of 0.2% of the respective wage increases for a few years, are steadily increasing. While pensions in 1970 totaled only 4.5 billion euros in the Federal Republic of Germany, an increase to 149.9 billion euros in 2050 is forecast to rise.². In addition, however, it should be noted that the Federal Commissioner for Economic Efficiency in Administration carried out a study in 1996. This led to the conclusion that the employment status (including pensions) does not significantly affect personnel expenses. It is therefore not to be expected that a replacement of civil servants by employees would significantly relieve the budget.

The public image of civil servants^{3 4} is generally rather negative. EA study commissioned by the German Civil Service Association (DBB) in 2007 came to the conclusion that the public service in Germany has a rather negative image. The profession of civil servants is mostly poorly regarded by the public. It is interesting, however, that individual professions of the public service, although they belong to the professional group of civil servants, have a higher reputation (such as.B. fire brigade and police).

The aim of this term paper is to investigate the question of whether the professional civil service is still up-to-date. This gives rise to two essential, further questions. "Is the institution of the professional civil service still necessary in the 21st century?" and "Does the professional civil service need a fundamental reform?". The developments in Switzerland serve as an example of the change which, on a first general view, has not led to any functional, democratic losses. However, a comparison with other legal systems that do not require a comparable German civil service law is often rejected in the specialist literature, since German civil service law is a specific German legal construction of the Basic Law.⁵. Taking into account historical developments, constitutional requirements and social developments, the current discussion in the Federal Republic of Germany will be examined in particular. This is characterized by the idea of a lean and effective as well as efficient state. In a next step, the question of whether abolition could actually lead to significant changes and savings will be investigated.

2 Historical development of the professional civil service

The historical emergence of the German civil service is part of the modern concept of the state. The creation of the professional civil service can largely be traced back to the initiative of the Great Elector in Brandenburg-Prussia. Even if the developments of the last centuries were trend-setting for today's professional civil service, the creations of the 18th century are to be mentioned as an essential milestone. Frederick William I is regarded as the father of the professional civil service, who acted contrary to the Estates order with its establishment. As a result, the officials had to fight against the prerogatives of the land nobility, which was considered corrupt and incompetent. According to the ideas of Frederick William I, the civil service was characterized by the three essential cornerstones "of expertise, a sense of duty and incorruptibility". The great merit at that time lay in the displacement of the "princely servant" by the so-called "public servant". Even if the people did not yet develop their own creative power as a subject association at this time, the relationship was at least limited to the description of the special relationship between the state and its public servants. The citizen, as a subject of the monarch, had to submit uncritically to the orders of the government. From then on, however, the orders no longer came from the monarch, but from his officials. In the following period, the citizens criticized the actions of the officials and demanded their assumption of responsibility. Now the official stood between the monarch and the people. The criticism that the bourgeoisie directed against the civil servants during this time was called bureaucracy⁶ and culminated in a crisis in 1840. At that time, the criticism was on everyone's lips and in the press. It was said that Prussia was a civil servant state and that the king was powerless in the face of bureaucracy. He must do what his officials want. In the following years, the complaint and criticism of the professional civil service remained and became more and more acute. It now included all estates and professions. The manufacturers and merchants criticized the diversity of the regulations, the stagnating development of the Zollverein was at the expense of the bureaucracy, the church lamented the loss of rights and the local self-government the municipal supervision was too strict and formalistic.

The idea developed that the state was there for the will of its citizens and not the other way around. The aim was to relieve the citizen without prejudice to state purposes. In this respect, various individual measures were taken in the following period, such as the introduction of consultation hours, the ban on civil servants summoning citizens unnecessarily, transparency of official decisions and the establishment of waiting rooms.⁷. The first legal basis for civil servants was created by Frederick William II in 1794 with the General Prussian Land Law, which contained the following three essential principles: transfer of an office on the suitability and competence, Appointment to a civil servant relationship for life and thus also Protection against arbitrary dismissal from the civil service.

The development and discussion at that time shows that the criticism of the professional civil service cannot be attributed to modern times, but already has a history that lasts for more than a hundred years.

After the collapse of the German Reich and the decline of the Nazi dictatorship, many Germans - but especially the Allied occupying powers - combined the horrors of National Socialism and their perfidious perfectionism with the professional civil service. The reintroduction of the professional civil service was therefore controversial in the post-war period. According to the draft constitutions of some federal states such as Bremen, Greater Berlin and Hesse as well as according to the ideas of the Allies, there should only be a uniform service law for all employees of the public service on the basis of labour law. In the end, the professional civil service and the two-track nature of the public service were able to assert themselves through Art. 33 sec. 4 and 5 GG after many controversial discussions.

3 Constitutional considerations

In its individual effects, the bundle of paragraphs 2 to 5 of Art. 33 GG includes the constitutional guarantee of the professional civil service. As has already been briefly outlined in the historical development, this is based on a constitutional decision. In a decision of the BVerfG, the professional civil service was described as an institution, which regularly has as its subject matter public legal employment relationships with mutual duty of loyalty and care ⁸.

The most important argument for the continued existence of the professional civil service arises from the Basic Law. This ties in with the German administrative tradition, which sees the professional civil service as an institution based on expertise, loyal fulfillment of duty and professional performance. As the bearer of a stable administration, the professional civil service should offer a balance against the political forces that shape state life⁹. The reliability and impartiality of the public service in the Federal Republic of Germany is ensured by the professional civil service.¹⁰

3.1 Reservation of function under Art. 33 sec. 4 GG

According to Art. 33 sec. 4 GG, the permanent exercise of sovereign power is generally to be entrusted to officials. This functional reservation, together with Article 33.5 of the Basic Law, contains, on the one hand, the institutional guarantee of the professional civil service and, on the other hand, the two-lane nature of the public service. This means distinguishing between career civil servants, judges and professional soldiers and between employees and workers in the public sector.

The functional reservation is intended to ensure that important matters are to be carried out only by those employees who are particularly obliged to the State.¹¹.

The Basic Law does not contain any legal definition or other explanations of the concept of public service. After the h. M. this is to be understood formally. In this respect, the activity in the service of a legal person is decisive.

An essential core element of the professional civil service is the mutual duty of loyalty, which results from the public service and loyalty relationship.

According to the wording of Article 33.4 of the Basic Law, the exercise of sovereign powers as a permanent task is generally to be entrusted to members of the public service who are in a relationship of service and loyalty under public law. There is no consensus on the interpretation of the term 'sovereign law'. However, this term can be understood in the sense of sovereignty and must therefore be limited to the administration of intervention. Whenever the state confronts the citizen with prohibitions, commandments or permits, this is understood to mean sovereign action of the intervention administration. These tasks should not and must not be carried out by any person, but are reserved for officials. Examples of sovereign action are:

Ensuring internal security – protection of people's life, limb and health by the police, and Protection of the state against external attacks (external security) – protection of the Federal Republic of Germany and its citizens by the Bundeswehr.

In addition to this core idea, it should also be intended that the state must provide for its citizens in times of emergency and has to fulfil a variety of tasks on the basis of the Basic Law, such as securing the principle of the welfare state. Despite all the criticism, the state does not limit itself exclusively to the sovereign tasks to be performed, but also performs modern tasks of existence, research and education.

While the concept of sovereign tasks has been interpreted very broadly in recent decades, it is particularly with regard to the existing reform considerations of the civil service that it is necessary to consider whether civil servants are required to the extent that exists or whether the performance of tasks could in future be even more closely limited to a core area.

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¹ cf. Kropp, Sabine : The EU States in Comparison, 3rd edition, 2008, VS Verlag für Sozialwissenschaften

² cf. http://www.institutional-money.com/cms/fileadmin/user_upload/Bilder_Magazin/IM_2_2008/IM_Beamtenvorsorge_2.1.pdf, 08.02.2009

³ dbb: Bürgerbefragung öffentlichen Dienst, 2007, Verlag o. a.

⁴ http://www.dbb.de/dbb-beamtenbund-2006/dbb-pdf/111007_forsa_buergerbefragung.pdf 13.02.2009

⁵ cf. Bull, Peter: Beamte – die vernachlässigten Hüter des Gemeinwohls?, in: Die öffentliche Verwaltung (DÖV), Heft 24, S. 1029 – 1038, 2007

⁶ note: Bureaucracy is the term for a system of government controlled by officials.

⁷ cf. Wiese, Walter : Geschichte des Beamtentums, 1980, Carl Heymanns Verlag KG

⁸ BVerfGE 10, 271

⁹ cf. BVerfGE 7, 162

¹⁰ cf. Summer, Ulrich: Gedanken zum Gesetzvorbehalt im Beamtenrecht, in: Die öffentliche Verwaltung (DÖV), Issue 6, p. 251, 2006

¹¹ cf. Wiese, Walter: Beamtenrecht, 3rd edition, 1988, Carl Heymanns Verlag KG

• Université: Berlin School of Economics and Law
• Note: 2,3
• Auteur: Jana Kuhlmey (Auteur)
• Année de publication: 2009
• Pages: 27
• N° de catalogue: V1170055
• ISBN (PDF): 9783346586452
• Langue: anglais