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Appointment of civil servants to senior executive positions on a fixed-term basis unconstitutional
Press Release No. 63/2008 of 19 June 2008
Order of 28 May 2008
2 BvL 11/07
In accordance with § 25b of the Land Civil Service Act of North Rhine-Westphalia (Landesbeamtengesetz Nordrhein-Westfalen - LBG NRW), appointments to certain senior executive positions in the civil service are initially made on a fixed-term basis. In such cases the additional civil servant status for a fixed term overlies the existing, though dormant, civil servant status for life. It is not possible to appoint civil servants to a senior executive position for life until they have served two terms of office totalling 10 years as a civil servant on a fixed-term basis. It is not possible for a life appointment to be made after the first term of office. After the end of the first term of office the civil servant "can" be appointed for a second term of office. After the end of the second term of office the office "should" be conferred for life.
The plaintiffs in the original proceedings are civil servants employed in the teaching profession and forestry administration in North Rhine-Westphalia who had been appointed to senior executive positions on a fixed-term basis. They had applied to be appointed to their respective positions for life, but their application was unsuccessful. After they filed an appeal on points of law (Revision) the Federal Administrative Court (Bundesverwaltungsgericht) submitted the question of the constitutionality of the appointment of civil servants to senior executive positions on a fixed-term basis for review by the Federal Constitutional Court.
The Second Senate of the Federal Constitutional Court has reached the conclusion that the regulations governing the appointment of senior executives on a fixed-term basis set out in § 25b LBG NRW violate the core of the principle of life tenure in Article 33. 5 of the Basic Law (Grundgesetz) and that the regulation is void. (The decision was carried by five votes to two.)
In essence, the decision is based on the following considerations:
1. The principle of life tenure, i.e. the conferring of all offices assigned during a career in the civil service for life, is one of the traditional structural principles of the professional civil service which the legislature not only has to take into account but has to comply with due to their constituting relevance. The function of this principle is to guarantee the independence of civil servants in the interest of a public administration governed by the rule of law. The purpose of civil servants being conscious of their secure legal position is to promote their willingness to be bound by law and order in the discharging of their duties and to enable them to serve the whole of society in an impartial manner. The professional civil service thus becomes a constituting element of the state under the rule of law. Exceptions from the principle of life tenure are only permissible in areas in which the specific circumstances and the nature of the duties performed provide grounds for appointing civil servants on a fixed-term basis (e.g. local government officials elected for a limited period, political appointees).
2. The appointment of civil servants to senior executive positions on a fixed-term basis violates the core of the principle of life tenure. The legal status of civil servants appointed on a fixed-term basis is not secure. Over a period of 10 years, which in the case of the higher service generally represents around one quarter to one third of a civil servant's lifetime service, civil servants lack the legal certainty which should give them the independence they require to exercise their office. During their first term of office it is completely uncertain whether they will remain in that office, even if they have entirely fulfilled the requirements of the office. Civil servants are in constant fear of being transferred back to the previous post based on which they have been appointed to the status of civil servant for life, with all the concomitant disadvantages, such as reduction in salary, reduction in pension and loss of standing with colleagues, subordinates and the general public. Such a measure is only permitted in the law on disciplinary offences, where downgrading an employee to a position with a lower final basic salary is the second most severe sanction after removal from office.
3. There is no sufficiently substantial justification for this breaching of the principle of life tenure. Justification can be found neither in the principle of achievement or in the promotion of mobility and flexibility in personnel placement, nor in the specific features of the senior executive positions in question.
Contrary to the cited objective, the regulation set out in § 25b LBG NRW is not geared to improving achievement, but rather lacks any means of influencing performance. The provision does not couple a second term of office, subsequent life appointment or transferral back to the position on basic pay to the civil servant's performance. Rather, it is to be feared that political aspects which are unrelated to achievement could also influence the decision. The provision is also not geared to enabling sanctions to be imposed where performance declines. The non-extension of a term of office is not dependent on a proven decline in performance. Likewise, the regulation is not geared to increasing competition, which the explanatory memorandum to the law refers to as its second objective. It is standard practice that § 25b LBG NRW is applied in such a way that no new application procedure is carried out when a civil servant is appointed for a second term of office and when the office is finally conferred after the completion of both terms of office. The previous office-holder therefore does not have to face any competition from other applicants a second time around as part of a procedure whose purpose is to select the best candidate. Finally, it is not necessary to appoint civil servants to senior executive positions on a fixed-term basis in order to examine their aptitude, ability and motivation regarding a senior executive position. Other instruments are more suited to that task and in accord with the principle of life tenure, such as the possibility of appointing civil servants to senior executive positions on probation.
In so far as the Land (state) legislature intends to increase civil servants' mobility and flexibility by appointing them to senior executive positions on a fixed-term basis, it is unclear to what extent appointing civil servants to senior executive positions on a fixed-term basis is suited to increasing their mobility for changing workplaces.
The offices covered by § 25b LBG NRW also do not have any objective and specific characteristics which could provide grounds for deviating from the principle of life tenure. In particular, those special grounds which permit generally recognised deviations from the life tenure principle in the case of the traditional types of civil servant status on a fixed-term basis do not apply to senior executive positions to which a certain salary grade is attached or to the position of head of a public authority or department. The hierarchical level alone does not provide sufficient grounds to dispense with securing the civil servant status for life. Even a comparison between these positions and local authority officials elected for a limited period or political appointments does not give rise to any other assessment. The senior executive positions on which the North Rhine-Westphalian legislature has focused as regards appointments on a fixed-term basis are comparable neither with the special nature of the duties discharged by local authority officials elected for a limited period and political appointees, nor with their position within the political process. The status of political appointees could, therefore, not be transferred to all the offices listed in Section 25b.7 LBG NRW.