Federal Constitutional Court - Press office -
Press release no. 63/2008 of 19 June 2008
Order of 28 May 2008 – 2 BvL 11/07 –
Appointment of civil servants to senior executive positions on a
fixed-term basis unconstitutional
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.
This press release is also available in the original german version.
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