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Please note that only the German version of this decision is authoritative. Further information can be found here.
This is an abstract from the CODICES database maintained by the Venice Commission. Please cite as follows: Abstract of the German Federal Constitutional Court’s Order of 23 May 2017, 2 BvR 883/14, 2 BvR 905/14.
Abstract
Second Senate
Order of 23 May 2017
2 BvR 883/14, 2 BvR 905/14

Headnotes (not official):

1. The requirement of fixed intervals between remuneration grades (Abstandsgebot) constitutes an independent traditional principle of the professional civil service system (hergebrachter Grundsatz des Berufsbeamtentums) which is closely linked to the principle of alimentation (Alimentationsprinzip) and to the principle of performance (Leistungsprinzip).

 

2. Regardless of the legislator’s broad leeway to design, the requirement of fixed intervals bars the legislator deciding on remuneration matters (Besoldungsgesetzgeber) from permanently levelling the intervals between different remuneration grades as far as the legislator does not use, in a documented way, its authority to re-evaluate the significance of professional positions and to restructure the whole remuneration framework.


Summary:

I. Civil servants in the Eastern German Laender received lower amounts of remuneration than those in the Federation and the Western German Laender. The Land Saxony adjusted the remuneration for civil servants in remuneration grades up to grade A 9 to the level of the respective Western German remuneration amounts taking effect on 1 January 2008. The remuneration grades A 10 and above were kept at the lower level of the Eastern German remuneration amounts until 31 December 2009. In order to rule out the situation that a civil servant in grade A 10 received smaller amounts of remuneration and benefits than a comparable civil servant in grade A 9, the differential between the remuneration according to grade A 9 (West) and grade A 10 (East) was paid, and an additional EUR 10 was granted. If a civil servant in grade A 10 received the same or an insignificantly higher amount as a comparable civil servant in grade A 9, the additional EUR 10 was not granted. Beyond the later adjustment to the higher Western German remuneration level, the rise in remuneration of 2.9% in 2008 was also delayed by four months.

One applicant is, the other one was a police officer in remuneration grade A 10 in Saxony. Both received the lower amounts of the Eastern German remuneration scheme. In addition, both were affected by the delayed rise in remuneration in 2008. Legal action against the delayed adjustment as well as the delayed rise remained unsuccessful.

The applicants claimed violations of their rights pursuant to Articles 3.1 and 33.5 of the Basic Law.

 

II. The Federal Constitutional Court decided that the delayed adjustment to the Western German level of remuneration and benefits for the remuneration grades A 10 and above as well as the delayed rise in remuneration in 2008 are incompatible with Articles 33.5 and 3.1 of the Basic Law.

 

The decision is based on the following considerations:

Among the most important principles of the civil service system are the principle of alimentation, the principle of performance, the career principle (Laufbahnprinzip), and the requirement of fixed intervals between remuneration grades which is closely linked to these principles.

 

The principle of alimentation imposes the obligation on the state (Dienstherr) to appropriately support civil servants and their families as well as to grant them an appropriate maintenance according to the development of the economic and financial situation as well as the general standard of living. The level of this maintenance is dependent on their rank, the responsibilities related to their office, and the relevance of professional civil service for the general public. The financial situation of public budgets or the objective of consolidating the budget alone cannot justify limitations of the principle of alimentation, which has to be appropriate to the office.

 

The principle of performance essentially refers to a merit-based approach, which not only relates to access to the professional civil service, but also to promotions. Civil servants are therefore subject to assessments of aptitude, qualifications and professional achievements.

 

According to the career principle, access to the civil service and professional success are dependent on standardised minimum requirements. The organisation of the public administration reflects the fact that offices for which higher remuneration is provided are the ones which perform more important tasks for the state. Therefore, considering the principle of performance and the career principle, the graded structure of the offices must be accompanied by grading the remuneration.

 

Provisions regarding remuneration and benefits are subject to the general guarantee of the right to equality. As a consequence, civil servants with equal or equivalent offices must, in general, receive the same amount of remuneration. This does not apply without limitations, but differentiations are only permissible if they are, according to the standard of Article 3.1 of the Basic Law, sufficiently justified. Due to the legislator’s wide leeway to design, the Federal Constitutional Court’s review is restricted to differentiations which are evidently objectionable under the Basic Law.

 

There are no apparent factual reasons which would be sufficient to justify the delayed rise in remuneration of 2.9% and the resulting disadvantaging of civil servants in remuneration grades A 10 and above compared to those in remuneration grades A 9 and below. The delay violates the applicants’ rights set forth in Article 33.5 in conjunction with Article 3.1 of the Basic Law.

 

The unequal adjustment to the Western German remuneration level for civil servants in remuneration grades A 10 and above compared to those in remuneration grades A 9 and below is also incompatible with the Basic Law.

The adjustment to the Western German remuneration level can be understood as a system change because it can be seen as a definite departure from a differentiation which resulted from taking account of the consequences of German unification. However, the two-phased adjustment of remuneration grades to the Western German level reflects a decision on how the system change was implemented and only amounts to a singular measure which is merely based on reasons of the state budget.

The challenged measure levels the interval between remuneration grades A 9 and A 10 (East) and therefore violates the requirement of fixed intervals between remuneration grades.

There are no apparent factual reasons for justifying this violation.

Further information can be found in the CODICES database, as soon as it has been processed.

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Additional Information

ECLI:DE:BVerfG:2017:rs20170523.2bvr088314

Please note that only the German versions are authoritative.