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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the Federal Constitutional Court’s Order of 24 April 2018, 2 BvL 10/16 [CODICES]
Abstract
Second Senate
Order of 24 April 2018
2 BvL 10/16

Headnotes:

1. The principle of lifetime employment (Lebenszeitprinzip) as a traditional principle of the career civil service system (Berufsbeamtentum) not only protects civil servants’ basic status for their lifetime, but also the respective office conferred to them according to their status. The lifetime employment affords the guarantee that the office according to their status is irrevocable. This is of fundamental significance because it ensures that civil servants, who are bound by law and justice, have the necessary independence, particularly when exercising the appointed office.

2. a) Certain positions in civil service are traditionally excluded from the protected core of Article 33.5 of the Basic Law and recognised as exceptions to the principle of lifetime employment.

b) Appointing a civil servant temporarily is an interference with the principle of lifetime employment, which is guaranteed under Article 33.5 of the Basic Law; it can thus only be justified with regard to the particulars of the field concerned and the associated exercise of functions.

c) It cannot be established in general whether the rationales of the respective position and its range of duties require an exception to the principle of lifetime employment and the conferral of offices according to status rights. It rather requires a specific assessment of the respective regulatory structure which takes account of all relevant aspects in the individual case. In that respect, potential further fundamental rights or rights equivalent to fundamental rights must not only be balanced against each other, but also against the structural principles of civil service law guaranteed by Article 33.5 of the Basic Law.

3. a) The position of university chancellors according to Brandenburg university law and their range of duties do not entail particular rationales that would require an exception to the principle of lifetime employment and the conferral of an office according to status rights.

b) The legislative decision of the Brandenburg legislator on university matters to make the university president a strongly monocratic leading position is not objectionable as such, but it cannot justify exceptions to the principle of lifetime employment of the chancellor. Attributing university chancellors to the sphere of responsibility of university presidents and subordinating them to university presidents is not a sufficient factual reason for appointing university chancellors as temporary civil servants.

c) According to its specific legislative set-up under Brandenburg university law, the position of university chancellor is not comparable with municipal elected civil servants or political civil servants.



Summary:

I.
The plaintiff in the initial proceedings was a lifetime civil servant of the Land Brandenburg; most recently, he held a position in the Brandenburg Ministry of Finance. After he had been selected for the position of university chancellor, the university’s president appointed him as chancellor in 2005. The Minister of Education and Science (hereinafter: the Minister) confirmed the appointment. Shortly after the appointment, the Ministry of Finance informed him about the fact that, according to the applicable legal provisions, he had lost his lifetime position due to his temporary appointment as university chancellor. In June 2010, the plaintiff applied for a renewed and unlimited appointment as university chancellor and the university president appointed him as such. The Minister denied the confirmation of the appointment. As a consequence, the position had to be advertised and a selection procedure had to be carried out. The plaintiff was appointed again and the Minister confirmed the appointment in 2011 and 2013, but again as a temporary appointment. The Federal Administrative Court suspended the proceedings dealing with the plaintiff’s action seeking lifetime appointment and referred the question whether the Land provisions on the temporary appointment of university chancellors are compatible with Article 33.5 of the Basic Law to the Federal Constitutional Court.

II.
The Federal Constitutional Court declared the provisions on the temporary appointment of university chancellors unconstitutional. It held that a temporary appointment in that position violates the core of the principle of lifetime employment, which is protected under Article 33.5 of the Basic Law as a traditional principle of the civil service system. The temporary appointment as university chancellor is an interference with the principle of lifetime employment which cannot be justified given the particulars of the case. There is no compelling factual reason in Brandenburg university law that requires an exception to lifetime employment.

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Additional Information

ECLI:DE:BVerfG:2018:ls20180424.2bvl001016

Please note that only the German version is authoritative. Translations are generally abriged.