Article 33 of the Basic Law
(1) Every German shall have in every Land the same civic rights and duties.
(2) Every German shall be equally eligible for any public offi ce according to his aptitude, qualifications, and professional achievements.
(3) Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affi liation. No one may be disadvantaged by reason of adherence or non-adherence to a particular religious denomination or philosophical creed.
(4) The exercise of sovereign authority on a regular basis shall, as a rule, be entrusted to members of the public service who stand in a relationship of service and loyalty defi ned by public law.
(5) The law governing the public service shall be regulated and developed with due regard to the traditional principles of the professional public service.
1. Employment in the public service
1.1 Two status groups of the public service
The constitution stipulates that the exercise of sovereign authority should, as a rule, be entrusted to members of the public service who stand in a relationship of service and loyalty defined by public law (Art. 33(4) of the Basic Law), that is, civil servants. In addition, public service tasks are performed by public employees without civil servant status.
Judges and military personnel stand in a special relationship to the federal level.
The Basic Law does not define what “sovereign authority” means. Therefore, Article 33(4) of the Basic Law is not considered as rigidly restricting the exercise of sovereign authority to civil servants. The professional civil service is intended to guarantee sound administration based on expertise, professional ability and loyal fulfilment of duties, and ensure that essential tasks are carried out continuously. Civil servants are mainly employed in core areas of administration, in particular in supervisory positions and in areas involving the exercise of sovereign authority (police, fire brigades, prison service, financial administration), but also in many areas of benefits administration. In contrast, public employees are employed in health and social services and in technical professions.
Given the relation between rule and exception defined in Article 33(4) of the Basic Law, the distinction between civil servants and public employees in terms of functions is fluid in practice. Each authority has a certain scope for action and may decide whether to employ civil servants or public employees.
The legal status of civil servants is governed by legal acts (laws and ordinances). The German Bundestag has the right to determine the rights and duties of civil servants as well as their salaries and pensions by law.
The employment of judges and military personnel, like that of civil servants, is also governed by public law. Public employees are employed on the basis of a contract under private law. General labour law applies to them as to all employees in Germany. However, specific working conditions are set out in collective agreements negotiated between the public employers at federal, Land or local level and the responsible unions (p. 59).
Public employees and civil servants have equal status. However, in addition to the restriction imposed by Article 33(4) of the Basic Law, there are significant differences between the two groups. In particular, only civil servants are subject to special obligations such as serving in a relationship of loyalty. The obligations of public employees, on the other hand, are based on their function as specified in the work contract and the collective agreements. Only civil servants are prohibited from striking, as a sign of their special loyalty to the state and ensuring that the core responsibilities of the public service are performed reliably without interruption.
Members of the Federal Government, i. e. the Federal Chancellor and the federal ministers, are not civil servants; their office is governed by public law and aimed at exercising governmental functions. However, this office under public law has developed out of employment as a civil servant and is governed by law, specifically the Act on Federal Ministers.
As office-holders who directly report to the parliament, the federal ministers manage their portfolios independently and on their own responsibilityin the framework of the general policy guidelines determined by the Federal Chancellor. They are not bound by instructions in individual cases and are not subject to any disciplinary power.
Depending on the size of their portfolios, the Cabinet members are assigned one to three parliamentary state secretaries; at the Federal Chancellery and the Federal Foreign Office they hold the title “Minister of State”. They must be members of the German Bundestag. Only direct assistants to the Federal Chancellery may assume this function even if they are not members of parliament. They represent and support the federal minister in fulfilling political and technical tasks, in particular in the plenary and in the Bundestag committees, in the Federal Cabinet and in public. The office of Parliamentary State Secretary is also governed by public law.
En: Der öffentliche Dienst des Bundes
Ver también:
– Bundesbeamtengesetz (BBG)
– Verordnung über die Laufbahnen der Bundesbeamtinnen und Bundesbeamten (Bundeslaufbahnverordnung – BLV)
– Grundgesetz für die Bundesrepublik Deutschland, 1949
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