Bundesverfassungsgericht

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Salary grade R1 in Saxony-Anhalt unconstitutional from 2008 to 2010

Press Release No. 27/2015 of 05 May 2015

Order of 05 May 2015
2 BvL 17/09, 2 BvL 1/14, 2 BvL 6/12, 2 BvL 5/12, 2 BvL 4/12, 2 BvL 3/12, 2 BvL 18/09

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court further defined the criteria for assessing whether the salary of judges and prosecutors complies with the principle of appropriate support (Grundsatz der amtsangemessenen Alimentation). On a first level of review, five parameters shall be analysed that have indicative value; if at least three of them are fulfilled, the salary is presumed to be below the constitutional requirements. The parameters are: a clear discrepancy between the development of salaries of judges and prosecutors on the one hand and the developments of standard wages in public service, the money wage index as well as the consumer price index on the other, furthermore an internal comparison of salaries as well as a cross-comparison with salaries paid by the Federation or, respectively, by other Laender. On a second level, this presumption may be further corroborated or rejected by taking into account further criteria in order to strike an overall balance. On a third level of review, one shall – if applicable – balance the need for appropriate support with conflicting constitutional values like the prohibition on taking on new debt; in exceptional cases, insufficient support may be justified under the Constitution.

According to these standards, the basic salaries of salary grade R1 paid in Saxony-Anhalt from 2008 to 2010 violate Art. 33 sec. 5 of the Basic Law (Grundgesetz – GG). The Land legislature is required to make new arrangements that conform to the Constitution and take effect no later than 1 January 2016. The basic salaries of salary grade R1 paid in North Rhine-Westphalia in 2003 as well as the basic salaries of salary grade R3 paid in Rhineland-Palatinate from 1 January 2012, on the other hand, do not violate Art. 33 sec. 5 GG. The decision was taken unanimously.

Facts of the Case and Procedural History:

The decision concerns a total of seven specific judicial reviews of whether the so-called “R” salaries of judges and prosecutors are constitutional. Two cases referred by the Higher Administrative Court (Oberverwaltungsgericht) of North Rhine-Westphalia regard the question of whether the salaries judges and prosecutors in salary grade R1 received in North Rhine-Westphalia in 2003 are compatible with the Basic Law (2 BvL 17/09 and 2 BvL 18/09). The four cases referred by the Administrative Court (Verwaltungsgericht) of Halle concern Saxony-Anhalts’s salary grade R1 from 2008 to 2010 (2 BvL 3/12, 2 BvL 4/12, 2 BvL 5/12 as well as 2 BvL 6/12) while the case referred by the Administrative Court of Koblenz regards the salary a managing senior prosecutor (Leitender Oberstaatsanwalt) was paid in Rhineland-Palatinate’s salary grade R3 from 1 January 2012 (2 BvL 1/14). Please also note the further information provided in press release no. 94/2014 of 24 October 2014 [, which is not available in English].

Key Considerations of the Senate:

1. The standard for determining the constitutionality of the legal bases for the salaries of judges and prosecutors results from Art. 33 sec. 5 GG.

a) The traditional principles of the professional civil service under Art. 33 sec. 5 GG include the principle of appropriate support. The state is required to appropriately support judges and prosecutors as well as their families throughout their lifetime as well as to provide them with subsistence that is appropriate to their rank, the responsibility they have in their respective office and to the importance the judicial branch and the professional civil service have to the public. This subsistence must correspond to general economic and financial developments as well as to developments of the standard of living. In implementing these requirements, the legislature possesses broad discretion, which corresponds to limited judicial review that merely determines whether decisions were based on evidently inadequate or inappropriate considerations (Maßstab der evidenten Sachwidrigkeit).

Material review is limited to establishing whether the salaries of judges and prosecutors are evidently deficient. This is determined by conducting an overall assessment of various criteria taking into account the specific groups that may be compared.

b) In order to better conduct this overall assessment, it seems natural to use parameters that are derived from the principle of appropriate support and that are economically reasonable to determine a framework with specific numeric values. There are five suitable parameters that are based on the Federal Constitutional Court’s jurisprudence on the principle of appropriate support and that have indicative value in determining the level of support required under the Constitution. If a majority of these parameters are fulfilled, the salary is presumed to be below the constitutional requirements (1st level of review).

aa) The first parameter is a clear discrepancy between the development of salaries of judges and prosecutors and the development of standard wages in the civil service of the respective Land, or – in case of federal salaries – at federal level. If the discrepancy between the results of collective bargaining and the adjustment of the salary in question amounts to at least 5 % of the raised salary’s index value, there is an indication for an evident violation of the principle of appropriate support. The assessment shall be made of the fifteen years preceding the period of time that is subject of the proceedings.

bb) The second parameter is a clear discrepancy between the development of salaries of judges and prosecutors and the development of the money wage index in the Land in question. There shall be an indication for an evident violation of the principle of appropriate support if the discrepancy over a period of fifteen years amounts to at least 5 % of the raised salary’s index value. Due to the relational character of this assessment, distortions caused by progressive taxation or by the obligation to make social security contributions have no significant impact and can be taken into account in the necessary overall balancing where appropriate.

cc) The third parameter is a clear discrepancy between the development of salaries of judges and prosecutors and the development of the consumer price index of the respective Land, or – in case of federal salaries – of the Federation. If the development of the salaries during the period in question is at least 5 % below the development of the consumer price index during the last fifteen years, there is a further indication for an evident violation of the principle of appropriate support.

dd) The fourth parameter is an internal comparison of salaries. From the principle of performance under Art. 33 sec. 2 GG and the principle of support under Art. 33 sec. 5 GG follows a requirement of fixed intervals between salary grades (Abstandsgebot) that – notwithstanding its broad discretion – prevents the legislature from permanently closing those intervals. Therefore, should the intervals between the salary grades’ gross salaries have notably decreased due to varying linear adjustments in individual salary grades or due to salary adjustments with delayed effect, this shall indicate a violation of the requirement of fixed intervals. As a rule, there shall be a violation if the intervals between two comparable salary grades have been decreased by at least 10 % in the past five years.

ee) The fifth parameter is the cross-comparison with salaries paid by the Federation and by other Laender. Considerable discrepancies between the salary in question and the average salaries paid in the respective salary grade by the Federation or the other Laender suggest that the support paid no longer fulfils its task of ensuring high-quality work. The question of when discrepancies are considerable cannot be generally answered. If the gross annual income in question including possible special payments [translator’s note: e.g. holiday or Christmas bonuses, which are paid independently of the judges and prosecutors’ performance] is 10 % below the average paid by the Federation and by other Laender during the same period, this also indicates that the salary is below the constitutional requirements.

c) If three of the above-mentioned parameters are fulfilled, the salary is presumed to be below the constitutional requirements; this presumption may be confirmed or rejected by taking into account further support-related criteria in order to strike an overall balance (2nd level of review).

aa) These criteria include the public reputation of the office in question as well as the effort and education required of the officeholder.

bb) The question of whether the support paid fulfils its function of ensuring high-quality work is also answered by whether the Land in question succeeds in hiring personnel for its higher judicial service that is qualified above average. This is not the case if over a period of five years the grade point average of the persons hired considerably decreases and/or the entry requirements for the higher judicial service are notably reduced.

cc) The level of the salary also reflects the particular nature of the work and the responsibility of a judge or prosecutor. It is in particular the judicial independence, protected by Art. 97 sec. 1 and sec. 2 GG, that must, inter alia, be secured by the judges’ salaries.

dd) Whether the support paid is appropriate to the office the person in question holds must also be determined with a view to the level of the benefits [translator’s note: i.e. health care benefits] that are provided. If the general salary is thinned out by illness-related expenses, this may under the Constitution require a correction of the salary and benefit laws. The same holds true if the legislature, by a large number of individual cuts that are each constitutional if assessed for themselves, bit by bit reduces the benefits and thereby the salary available to ensure general subsistence in an inappropriate way (“salami tactics” [translator’s note: tactics that employ a large number of small steps to achieve their goal]). Pension cuts can also lead to the salary dropping below the constitutional requirements.

ee) The question of whether the support paid is appropriate to an office that is intended to attract personnel with above-average qualifications is also answered by comparing the level of the salary in question with the average gross salary paid to employees liable to social security contributions with comparable education and responsibility in the private sector. In doing so, one must take into account the particularities of the status of judge or prosecutor and of the civil service’s salary and benefit system.

d) If the overall assessment shows that, in principle, the challenged salary is below the constitutional requirements, one needs to determine whether this deficiency can be justified under the Constitution by way of exception. The principle of appropriate support is part of the institutional guarantee of a professional civil service enshrined in Art. 33 sec. 5 GG, which is linked with the traditional principles of a professional civil service. To the extent that this principle conflicts with other constitutional values or institutions, it must – as is true everywhere – in accordance with the principle of practical concordance be reconciled with them by striking a careful balance (3rd level of review).

The prohibition on taking on new debt in Art. 109 sec. 3 sentence 1 GG (“debt brake”) is of constitutional value. According to Art. 143d sec. 1 sentence 4 GG, the budgets of the Laender for the fiscal years 2011 to 2019 must be designed to ensure that the requirement in Art. 109 sec. 3 sentence 5 GG – no structural net borrowing – will be met in the fiscal year 2020. This requirement must be taken into account by the budget-setting legislature when adjusting the salaries of judges and civil servants.

However, neither the state’s budgetary situation nor the aim of budget consolidation alone can restrict the principle of appropriate support; otherwise the protective function of Art. 33 sec. 5 GG would be to no avail. Nor does the special relationship of loyalty require judges and civil servants to contribute more than others to budget consolidation. Restrictions on the principle of appropriate support for purely financial reasons may be justified to deal with exceptional situations (cf. Art. 109 sec. 3 sentence 2 GG) if, as evidenced by a sound reasoning provided in the preparatory material, the legislative decision in question is part of a coherent and comprehensive concept for budget consolidation.

e) Apart from the minimum support required under the Constitution resulting from the overall assessment described above, the existing support provided for by law is protected to a certain extent (relativer Normbestandsschutz). Cuts or other changes may be justified by reasons that are inherent to the system of support for civil servants. In addition, financial considerations may play a role; however, the aim to reduce expenses cannot serve as a legitimate reason to cut the salaries, unless it forms part of a coherent overall concept to achieve the goal of budget consolidation enshrined in Art. 109 sec. 3 GG.

f) When setting the level of salaries, the legislature has to adhere to certain procedural requirements. In particular, the legislature is under a duty to state reasons. The parameters identified and the balance struck between them that are used to determine the constitutionally required extent of adjusting salaries have to be stated and explained in the legislative procedure.

2. In view of these standards, the basic salary rates of salary grade R1 applied in Saxony-Anhalt from 2008 to 2010 were not compatible with Art. 33 sec. 5 GG.

a) There are indicators suggesting an evident inappropriateness of support when comparing the adjustment of salaries with the development of wages in the civil service, with the money wage index and the consumer price index in Saxony-Anhalt. Between 1994 and 2008 the development of salaries of judges and prosecutors was 7.79 % lower than the increase in civil servants‘ wages, 15.48 % lower than the increase of the money wage index and 11.76 % lower than the increase of the consumer price index (between 1995 and 2009: 5.66 % / 7.18 % / 5.07 %; between 1996 and 2010: 7.78 % / 7.34 % / 8.21 %). For judges and prosecutors who have obtained their qualifications in Western Germany, between 1994 and 2008 the developments differed as follows: 6.83 % with reference to the development of wages, 14.46 % with respect to the increase of the money wage index and 10.77 % with respect to the increase of the consumer price index (between 1995 and 2009: 4.72 % / 6.23 % / 4.14 %, between 1996 and 2010: 6.82 % / 6.39 % / 7.25 %); the divergence is due to lower special payments for this group at the beginning of the period taken into account. Therefore, there is a presumption that, from 2008 to 2010, the basic salaries of the salary grade R1 in Saxony-Anhalt dropped below the constitutionally required minimum for support appropriate to the office held.

b) This presumption is corroborated when striking an overall balance by taking into account further support-relevant parameters.

aa) The office of judge or prosecutor in salary grade R1 requires high academic standards and qualifications of the officeholder. In general, no more than 10 % of the graduates meet the conditions for entering the higher judicial service. Against this backdrop, the salaries have to be designed in a way that generally renders them attractive to this relatively small group of highly qualified graduates.

bb) The attribution of pivotal responsibilities within the constitutional order founded on the rule of law combined with the unique autonomy granted by Art. 97 GG has to be reflected in the determination of the value of an office within the salaries system. The particular position of the prosecutor in the constitutional architecture also has to be taken into account when determining the salaries.

cc) An overall assessment to determine the appropriateness of the support available for judges and prosecutors has to include noticeable cuts in the field of benefits as one parameter.

dd) Comparing the salaries with the salaries of reference groups outside the civil service confirms the presumption of evidently inappropriate salaries. The data provided by the Federal Statistical Office during and after the public hearing show that salaries of R1-officeholders in 2010 were mostly significantly lower than salaries of comparable employees in the private sector and that the relative development of their income compared to the median income had noticeably decreased since 2001.

c) There are no conflicting constitutional rights, principles or values changing the assessment that the salaries were evidently inappropriate. In particular, the “debt-brake“ did not apply to the Saxony-Anhalt’s legislature in 2010.

3. On the other hand, R1 salaries in North Rhine-Westphalia in 2003 meet the requirements of Art. 33 sec. 5 GG. The basic salary at salary grade level 3 in Rhineland-Palatinate from 1 January 2012 onwards is also compatible with the constitutional standards.

In both Laender, review of the salary-relevant parameters on the first level does not suggest a salary below constitutional requirements. There are no other reasons indicating evidently inappropriate salaries.