Removal of civil servant status by administrative act is permissible under constitutional law

Press Release No. 16/2020 of 11 March 2020

Order of 14 January 2020
2 BvR 2055/16

The removal of civil servant status by administrative act (Verwaltungsakt) does not violate the traditional principles of the career civil service system (hergebrachte Grundsätze des Berufsbeamtentums) within the meaning of Art. 33(5) of the Basic Law (Grundgesetz – GG). There is no principle requiring that the removal of civil servant status be based on a decision by a judge or by an entity different from the civil servant’s superior. Abolishing the judicial disciplinary powers does not violate the principle of lifetime employment either. This is what the Second Senate decided in an order published today. The Senate rejected as unfounded the constitutional complaint of a former police officer from Baden-Württemberg whose civil servant status had been removed by an administrative act according to amended provisions enacted by the Land Baden-Württemberg.

Facts of the case:

Disciplinary laws of the Federation and of most Länder assign the competence to decide on the removal of civil servant status to a disciplinary court system (Disziplinargerichtsbarkeit) existing within the administrative court system (Verwaltungsgerichtsbarkeit). While the public employer (Dienstherr) has the power to decide on the discontinuation of disciplinary proceedings and imposition of basic and medium disciplinary measures, they must file a disciplinary action (Disziplinarklage) before the administrative court to have such a severe, status-related measure, like the removal of civil servant status, imposed. Since 2008, § 38(1) of the Baden-Württemberg Disciplinary Act (Landesdisziplinargesetz Baden-Württemberg – LDG BW) provides, by contrast, that all disciplinary measures are imposed by administrative act. Civil servants can have recourse to the administrative courts against such disciplinary decisions without preliminary proceedings (Vorverfahren). Such actions do not have suspensive effect. In principle, legal recourse extends to three court levels, but appeals on points of fact and law are subject to admission. Subsequent judicial review is assigned to special disciplinary chambers or senates.

The complainant last carried out his duties as a senior police constable (Polizeiobermeister) at a police station. At the same time, he was managing two construction companies. In this context, he was convicted three times, most notably for fraud and document fraud. Following his most recent offence, combining previous sentences into a single prison sentence (Gesamtfreiheitsstrafe), he was sentenced to eleven months in prison suspended on probation. In December 2011, the competent police headquarters removed the complainant’s civil servant status. Legal action taken against the removal remained unsuccessful at all court levels, including the appeal on points of law to the Federal Administrative Court (Bundesverwaltungsgericht).

Key considerations of the Senate:

I. Pursuant to Art. 33(5) GG, the law governing the public service shall be regulated and developed with due regard to the traditional principles of the career civil service system. These entail the core set of structural principles, which have been generally or at least predominantly recognised as binding and observed during an extended period of time that shaped tradition, in particular in times of the Weimar Constitution. 

II. There is no traditional principle of the career civil service system requiring that the removal of civil servant status be based on a judicial decision. An analysis of legal history shows that such a rule did not evolve until the end of the Weimar Republic. In some German states, there had been provisions entailing a requirement of prior judicial authorisation from the mid-19th century onwards. However, in Prussia and the German Reich disciplinary powers of judges did not take hold during the relevant period; therefore, it cannot be assumed that the principle in question was applied at least predominantly.

III. Furthermore, a traditional principle requiring that the decision on removal of civil servant status be excluded from the immediate disciplinary powers held solely by the superior and be taken instead by an entity different from the civil servant’s superior does not exist either. In the period of time that shaped tradition, alongside the conferral of disciplinary powers to courts, various elements of executive self-regulation and external judicial oversight, combined in different ways, existed. Here, the primary aim was not to divest specifically superiors of disciplinary powers, but to protect civil servants from arbitrary removal of civil servant status and thus prevent the taking of binding decisions by a single individual solely by themselves. For reaching those aims, other measures are conceivable, in particular subsequent, comprehensive judicial review. From that, as an argumentum e contrario, it follows that divesting superiors of their sole disciplinary powers did not shape the career civil service system in such a way that it must be afforded the status of a structural principle.

IV. 1. The principle of lifetime employment, which is part of the core of structural principles under Art. 33(5) GG, does not require prior judicial authorisation for a removal of civil servant status, since effective subsequent judicial legal protection is guaranteed. In addition to the principle of life tenure, the principle of lifetime employment also includes that, in general, civil servants cannot be removed from the office they hold according to their legal status (statusrechtliches Amt). Only legal and financial security guarantees that the career civil service system can contribute to the fulfilment of its purpose– assigned to it by the Basic Law – to ensure a stable and lawful administration in the context of political power play. Additionally and above all, this includes the aspect that civil servants cannot be removed from office arbitrarily or at the whim of political bodies. The termination of civil servant status is permissible only under the requirements and in those ways that are precisely laid down in statutory law. Being aware of their secured position is intended to promote civil servants’ willingness to perform their duties in accordance with law and justice. Only by guaranteeing internal and external independence, it can realistically be expected that civil servants will insist on exercising their duties according to the rule of law even where this is politically disliked. Thus, the career civil service system constitutes one of the fundamental elements of the state under the rule of law.

2. In the democratic state under the rule of law set out by the Basic Law, the protection from arbitrariness by the state and abuse of power that exists in order to protect freedom is mainly guaranteed by the separation of powers. However, this does not mean that already the initial disciplinary decision is required to be taken by a court. Rather, in view of the comprehensive system of legal protection, sufficient protection of fundamental rights can generally be guaranteed by subsequent judicial review. In fact, it cannot be ruled out that, as an exception, procedural protection of fundamental rights may require that the initial decision must be taken by a court. This can be necessary, in particular where subsequent legal protection affords only insufficient protection. However, in this case, such structural shortcomings in terms of legal protection cannot be identified. It is true that the removal of civil servant status interferes with the principle of lifetime employment in an essential manner. Yet a potential unlawful interference can be rectified by subsequent judicial review in a sufficiently effective way. Where disciplinary proceedings involve financial or status-related disadvantages, for example with regard to potential promotions, in urgent cases, these can be effectively addressed by preliminary legal protection.

3. At any rate, the requirements of the principle of lifetime employment are satisfied by effective subsequent legal protection in form of comprehensive judicial review. Removal of civil servant status pursuant to the LDG BW, as it is interpreted and applied by the Baden-Württemberg Higher Administrative Court, is designed as a non-discretionary decision subject to comprehensive judicial review.

Under the LDG BW, the civil service status of civil servants will be removed if, due to a serious disciplinary offence, they have definitively lost the trust of their public employer or of the public to exercise their duties in accordance with their obligations. Here, the civil servant’s personal circumstances and attributes must be taken into account. When determining whether a serious disciplinary offence has occurred, the objective action, subjective aspects of the action and direct consequences of the disciplinary offence on the official sphere and on third persons must be taken into account as both incriminating and exonerating factors. With regard to the definitive loss of trust, it must be assessed whether, due to an overall prognostic evaluation based on all significant incriminating and exonerating aspects applicable in the individual case, it must be concluded that the civil servant will seriously violate official duties in the future or that it will not be possible to compensate for the harm to the reputation of the career civil service system caused by the misconduct if the civil servant retains the civil service status. In that respect, there is no margin of assessment as to the constituent elements or discretion as to the legal consequences. In particular, there is no executive margin of assessment with regard to the finding of a definitive loss of trust. According to the established case-law relevant to this case, the extent of this margin is determined on the basis of objective criteria. Even with regard to the potential discretion as to whether the authority acts at all or not (Entschließungsermessen), there does not remain any vacuum of oversight due to the particular structure of the provision as regards its constituent elements. With regard to the criteria stated above, all conceivable aspects potentially allowing for discretion as to the legal consequences are constituent elements, so that, when viewed reasonably, no elements remain that could allow for discretion as to whether the authority acts at all or not. In such a system of comprehensive judicial review, there is no need for at least partially original judicial disciplinary powers. Civil servants are afforded sufficient protection by subsequent judicial review since an unlawful final decision can be averted.

Thus, the question whether decisions on removal of civil servant status must be based on at least partially original judicial disciplinary powers is ultimately only relevant with regard to acceleration aspects. A judgment that simply reverses a prior administrative decision can significantly prolong disciplinary proceedings if superiors again impose a disciplinary measure which itself is submitted for judicial review. In view of this risk of delay, a conflict may arise with the requirement of swift conduct of disciplinary proceedings, which follows from the principle of proportionality. However, the delay that might result from subsequent judicial legal protection in some cases is not so weighty that original judicial disciplinary powers would be absolutely necessary.

4. Abolishing the removal of civil service status by judicial decision does not cause factual obstacles for seeking judicial legal protection that impose special requirements on the design of judicial proceedings in consideration of the principle of lifetime employment. In particular, it is unobjectionable under constitutional law that, in case of subsequent judicial review, the court hearings are public and that the person bringing an action must pay legal fees, especially since the principle of public hearings (Öffentlichkeitsgrundsatz) and the cost risk also exist in the system of judicial disciplinary action.

5. The principle of lifetime employment does not impose any special requirements on the design of administrative proceedings.

6. The concern that due to the amendment, the administration might refrain from a necessary removal of civil servant status for convenience or for fear of a public court hearing so that inacceptable persons remained in office is of no consequence in the context at issue. This is not least because, within the system of disciplinary action as well, there is the risk that an action might not be brought even though the constituent elements are satisfied and there has been a violation of an obligation to act. There is no substantial indication for the opposite case of structural danger of abuse within the meaning of “vexatious removals”. Where a decision on a removal does not fulfil the statutory requirements, it can be challenged in court and may ultimately be reversed. If, on the contrary, the decision meets the requirements, there is no room for assuming abuse. 

Separate Opinion of Justice Huber

The traditional understanding of the traditional principles of the career civil service system which focuses on the Weimar Republic has to be modified as “traditional principles” could and still can develop also under the Basic Law. This does not have an impact on the case at hand because the Senate majority in their conclusion has correctly denied the existence of a traditional principle according to which the removal of a civil servant from office can only be ordered by a judge.

However, the abolition of the requirement of prior judicial authorisation of removals of civil servants from office without effective substitution interferes with Art. 33(5) GG in a disproportionate manner. Functionally equivalent safeguards, such as formal administrative proceedings ensuring impartiality and fairness, do not compensate for the interference. In that respect it is not enough to merely rely on the legal protection provided by administrative courts.

The requirement of prior judicial authorisation not only guarantees civil servants the highest degree of effective legal protection. At the same time, it also ensures fairness and equality of arms (Waffengleichheit) between the civil servant and their employer and impedes an abuse of disciplinary powers by the superior. Given that this requirement has been applied in Germany for decades, it has become an essential manifestation of the principle of lifetime employment und thus part of the effective scope of protection of Art. 33(5) GG that must be adhered to by the legislature. This concerns the guarantee of civil servants’ independence, their protection from arbitrary removal from office, maintaining the awareness of a protected legal position and an essential safeguard of the principle of lifetime employment in line with procedural protection of fundamental rights. Removal from office is the most serious interference of disciplinary powers vis-à-vis active civil servants that is conceivable. If this interference is meant to be proportionate, special, effective procedural safeguards are required so that civil servants are not exposed to the risks related to their employer’s authority to decide on their status without protection. It is decisive that civil servants remain effectively protected from arbitrary removal and its prior and later effects.

§ 38(1) LDG BW does not satisfy these requirements. Compared to the status quo ante, the removal from office by administrative decision involves substantial disadvantages and risks for the personal and economic independence of civil servants – shifting the risk of litigation, creating economic and social insecurity, creating a risk of stigmatisation, strengthening the lack of parity between the parties, increasing susceptibility to manipulation, etc. – that can impair the effects of the principle of lifetime employment, which are required under constitutional law. Thus, abolishing the requirement of prior judicial authorisation without any substitution appears to be a disproportionate interference with the relative protection of existing legal provisions by Art. 33(5) GG, which is not averted by the possibility of subsequent judicial review.