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W 2 remuneration of professors in Hesse held unconstitutional

Press Release No. 8/2012 of 14 February 2012

Judgment of 14 February 2012
2 BvL 4/10

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.