Federal Constitutional Court - Press office -
Press release no. 8/2012 of of 14 February 2012
Judgment of of 14 February 2012 – 2 BvL 4/10 –
W 2 remuneration of professors in Hesse held unconstitutional
In its judgment pronounced today, the Second Senate of the Federal
Constitutional Court has ruled that the remuneration received by the
professors paid according to salary scale W 2 in Hesse infringes the
maintenance principle (Alimentationsprinzip), i.e. the principle of the
state’s obligation to take care of civil servants’ welfare, from Article
33.5 of the Basic Law (Grundgesetz – GG) and is hence unconstitutional.
The legislature is ordered to enact provisions which are in conformity
with the constitution with effect from 1 January 2013 at the latest.
In 2002, a new remuneration system for professors consisting of fixed
basic salaries and variable pay for performance was introduced
(remuneration ordinance W). In 2005, the plaintiff in the original
proceedings, who was born in 1965, was appointed university professor
and assigned an established post in salary scale W 2 of remuneration
ordinance W while attaining the status of a civil servant for life.
After unsuccessful objection proceedings, he filed an action against the
Land (state) of Hesse in which he sought a declaratory judgment holding
that his maintenance from salary scale W 2 does not satisfy the
constitutional requirements placed on a remuneration that is in keeping
with the office held.
The Administrative Court suspended the proceedings and submitted to the
Federal Constitutional Court the question of whether remuneration
ordinance W is in conformity with the constitution. The submitting court
holds the view that the salary received by the plaintiff in the original
proceedings according to salary scale W 2 infringes the maintenance
principle guaranteed in Article 33.5 GG. The Administrative Court argues
as follows: The basic salary does not constitute a maintenance that is
in keeping with the office of a professor. The only decisive criterion
for assessing whether maintenance is in keeping with the office held is
the respective basic salary; the pay for performance which the
office-holder may possibly attain does not enter into the assessment.
The basic salary which is due to a W 2 professor is not commensurate
with the training required from the office-holder, the demands placed on
him or her, his or her responsibility and the importance and reputation
of the office in the eyes of the public. This results from a comparison
with the former salary of professors, the salaries received by other
groups of civil servants and the incomes in comparable groups of
occupations outside the civil service.
The decision was passed with 6:1 votes. Justice Gerhardt submitted a
dissenting opinion.
In essence, the judgment is based on the following considerations:
1. a) The maintenance principle obliges the employer to take lifelong
care of the civil servant’s welfare and that of his or her family and to
pay appropriate maintenance according to the civil servant’s rank, the
responsibility involved with his or her office and according to the
importance of the permanent civil service for the general public, in
keeping with the development of the general economic and financial
circumstances and the general standard of living. In the context of this
obligation, the legislature is to take account of the attractiveness of
a civil-service employment for staff with an above-average
qualification, the reputation of the office in the eyes of the public,
the training required from the office-holder and the demands placed on
him or her. The legislature must take account of these criteria when
structurally reorganising the law on remuneration as well as when
continuously updating the amount of remuneration in the course of the
years by making an overall assessment of the relevant criteria and using
comparative groups that are suitable in the respective context.
Suitable comparative groups can primarily be found within the
remuneration system itself. Linking maintenance to criteria such as
rank, which are proper to the civil service and directly related to the
office, intends to ensure that the salary is graduated according to the
different significance of the offices. Here, comparisons are possible
and indicated not only within a given remuneration ordinance but also
between the different remuneration ordinances. Furthermore, whether
maintenance is in keeping with a given office is determined by comparing
it to the income which is earned in comparable positions outside the
civil service that can be attained on the basis of a comparable
training. However, in view of the systemic differences existing between
the civil service and the private sector, the conditions (only) need to
be comparable on the whole.
b) The legislature has broad freedom of drafting when putting into
concrete terms the state’s obligation, resulting from Article 33.5 GG,
to take care of civil servants’ welfare in a manner that is in keeping
with their office. The guarantee, contained in Article 33.5 GG, of a
maintenance that is “in keeping with the office” merely constitutes a
constitutional directive for concretisation that establishes an
obligation for the legislature enacting laws on remuneration. A cautious
review of the non-constitutional provision by the Federal Constitutional
Court, which is restricted to applying the standard of evident
inexpediency, corresponds to the legislature’s broad freedom of
drafting. For the concretisation directive of Article 33.5 GG being
observed all the same, procedural safeguards in the shape of obligations
to state reasons, to examine and to observe are required; such
obligations apply with regard to the continuous updating of the amount
of the salary in the shape of regular adaptations of salary as well as
with regard to structural reorganisations of the law on remuneration in
the shape of system changes. In the case of system changes which concern
the assessment of an office and the concomitant classification under the
law on remuneration, the legislature must ensure that the re-assessment
of an office under the law on remuneration still does justice to the
(unchanged) requirements of the office. If the legislature’s
re-assessment results in a marked reduction in salary, objective reasons
are required for this.
c) The legislature’s broad freedom of drafting also covers the
introduction of new performance elements in remuneration, and the
modification of existing ones. In principle, a two-stage remuneration
system consisting of fixed basic salaries and variable pay for
performance can exist instead of a remuneration system whose point of
reference is the basic salary and which is structured according to
seniority levels. If, however, the legislature replaces one system by
the other, apart from the demands placed by the maintenance principle,
the other constitutional principles relevant in this context must be
satisfied. In order to be able to compensate a maintenance deficit
arising from low basic salary rates, the possibility of achieving pay
for performance must be open to every office-holder, and pay for
performance must show sufficient continuity. With regard to the group of
professors, this is the case, for instance, where the legislature has
formulated the criteria for awarding the pay for performance in a
sufficiently clear and definite manner and where the individual
professor – subject to an unavoidable margin of appreciation needed to
preserve the freedom of science, research and teaching – has, under
clearly defined, predictable prerequisites that can be fulfilled, an
enforceable claim to being awarded pay for performance.
2. In its overall concept, the W 2 salary of the professors in Hesse
does not comply with the requirements placed by the maintenance
principle on a maintenance of the persons affected that is in keeping
with their office. The remuneration granted is evidently insufficient.
The maintenance deficit resulting from the basic salary rates is not
compensated by the pay for performance in its present configuration.
a) In salary scale W 2, the fixed basic salary rates of remuneration
ordinance W are not sufficient for securing a livelihood to a professor
that is appropriate to his or her rank, to the responsibility involved
with the office and the importance of the permanent civil service for
the general public. When fixing the basic salary rates, the legislature
did not take sufficient account of securing the attractiveness of the
office of professor for correspondingly qualified staff, of the
reputation of the office in the eyes of society, the training required
of a professor, the professor’s responsibility and the demands placed on
him or her. This becomes evident primarily from the comparison of the
basic salary rates of salary scale W 2 with the basic salary rates of
remuneration ordinance A and is confirmed by a comparison with the
incomes outside the civil service.
In comparison with remuneration ordinance A, the basic salary of a W 2
professor does not reach the remuneration of a young Regierungsdirektor
or Studiendirektor (salary scale A 15). It is below the salary level of
the post of entry to the higher service in the final stage (salary scale
A 13). This evident imbalance established by the federal legislature has
been continued by the Land legislature of Hesse, which is now competent
for the remuneration and maintenance of its civil servants, when
introducing the Land remuneration ordinances in Hesse and in the general
adaptations of salaries. The basic salary rates in salary scale W 2 do
not do justice to the high demands placed on the academic career and the
qualification of the holders of these offices or to the great variety
and the high demands of the tasks in research, teaching and
administration involved with the office of professor. Furthermore, the
comparison of salary scale W 2 with the salary of related groups of
employees in the private sector makes evident that the W 2 professors
are situated far down in the respective salary scale.
b) The evident inappropriateness of the basic salary rates is not
eliminated by the fact that the possibility of attaining pay for
performance is provided to the office-holders by the legislature because
the possibility is obviously not open to every office-holder and pay for
performance does not show sufficient continuity. According to the
configuration in non-constitutional law and the legislature’s intention,
there is no right to be awarded pay for performance but only a right for
the award to be decided on a basis that is free from abuse of
discretion. The determination of the amount of the pay for performance
is a discretionary decision that is subject to but a few statutory
regulations. As according to the statutory configuration, an overall
volume of pay, i.e. an overall amount for the annual award of pay for
performance, must be determined, the award of individual pay for
performance must take into account the extent to which the overall
volume has already been drawn upon by the earlier granting of pay for
performance. The professors who “are late” will only receive low pay for
performance or none at all, without this depending from the professor’s
individual performance or the professor being able to influence this in
any way. The other modalities of the award of the pay for performance
prove that in its present configuration, its nature is merely that of an
addition to the salary and not that of maintenance. The pay for
performance can be awarded not only on a permanent, but also on a
temporary basis or as a one-off payment, and therefore often has little
effect on pension payments.
3. The legislature has several options for eliminating the maintenance
deficit that was held unconstitutional. The legislature can ensure a
maintenance level in keeping with the office through the amount of the
basic salary rates or, for instance, organise the pay for performance in
such a way that it complies with minimum requirements with regard to
maintenance. In view of these legislative possibilities, after opting
for a specific model of new provision that implements the requirements
under constitutional law, the legislature is obliged to observe whether
the model is able to function and whether it is compatible with the
logic of the system, and to make improvements that may prove necessary.
If the model chosen for the future does not prove to be viable or if the
actual development deviates from the predicted one for other reasons,
the legislature is obliged to make corrections of the configuration of
the system of remuneration or of the amount of salaries.
Dissenting opinion by Justice Gerhardt:
1. The remuneration of academics has always been based on principles
that are different from those applying to the remuneration of the other
civil servants. One of the special features of the law governing the
remuneration of academics has always been that apart from the salary
which is due to the academic in any case, there are optional types of
payment of different kinds and configurations; to a considerable extent,
they include elements related to function and performance, some of which
are amenable to contractual arrangements. Even with regard to the amount
of the salaries of professors, no structural principles can be
ascertained in the tradition-forming period of time that could restrict,
as traditional principles of the permanent civil service according to
Article 33.5 GG, the legislature’s freedom of drafting with regard to
the salaries of professors. In particular, there is no tradition of a
specific relation to the maintenance of other civil servants that stands
up to the constitution.
2. By falling back on the maintenance principle that applies to the
civil service at large and finding a maintenance deficit of a group of
professors by directly comparing components of remuneration ordinances A
and W, the Senate majority therefore overstretches the limits imposed on
the legislature by Article 33.5 GG. This does not respect the
legislature’s fundamental decision that builds on the tradition of the
remuneration of professors, namely to create a remuneration which does
justice to the chances and risks in the career and professional
development of academics, and to the specific tasks of science and
research, by integrally combining a basic salary that is undisputedly
moderate but reasonable with an opportunity of earning function and
performance allowances.
This press release is also available in the original german version.
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