The provision in the North Rhine-Westphalia Civil Service Act allowing a police commissioner’s placement in temporary retirement is void

Press Release No. 44/2024 of 16 May 2024

Order of 9 April 2024 - 2 BvL 2/22

In an order published today, the Second Senate of the Federal Constitutional Court held that § 37(1) no. 5 of the North Rhine-Westphalia Civil Service Act (Beamtengesetz für das Land Nordrhein-Westfalen – LBG NRW) in the versions of 21 April 2009 and 14 June 2016 is incompatible with Art. 33(5) of the Basic Law (Grundgesetz – GG) and declared the provision void. Under the provision, police commissioners in North Rhine-Westphalia are political appointees (politische Beamte), which makes it possible to order their temporary retirement at any time, despite the fact that they have the status of civil servants with life tenure.

The plaintiff in the initial proceedings was police commissioner of Cologne. Following an incident involving numerous sexual assaults as well as other crimes in the area of the Cologne Cathedral and the forecourt of the central train station on New Year’s Eve 2015/2016, the plaintiff was placed in temporary retirement in January 2016. He challenged this decision. The Higher Administrative Cout (Oberverwaltungsgericht) for the Land North Rhine-Westphalia suspended the proceedings and referred the provision of § 37(1) no. 5 of the North Rhine-Westphalia Civil Service Act to the Federal Constitutional Court for review.

§ 37(1) no. 5 of the North Rhine-Westphalia Civil Service Act violates Art. 33(5) of the Basic Law and is therefore void. The possibility of placing a police commissioner in temporary retirement at any time interferes with the principle of life tenure. This principle generally precludes removing civil servants from their office, which confers a specific legal status. The interference is not justified by any particular requirements that might arise from the position in question. The position of police commissioner cannot be characterised as a ‘political office’, neither in view of the tasks assigned to police commissioners in North Rhine-Westphalia, nor in view of the decision-making powers accorded to them, their organisational status, the scope of their obligations to advise the Land government or any other aspects.

Facts of the case:

A police commissioner in North Rhine-Westphalia heads one of 18 police headquarters. In precincts with at least one self-governing city, these police headquarters serve as district police authorities and are responsible for public security, the investigation and prosecution of criminal and administrative offences and the monitoring of road traffic. In precincts without such police headquarters, the function of district police authority is performed by 29 district commissioners (Landräte), which means that there are a total of 47 district police authorities.

In organisational terms, district police authorities are lower Land authorities. Technical oversight of the district police authorities is exercised by the three higher Land authorities for the police: the Land Office for Central Police Services (Landesamt für Zentrale Polizeiliche Dienste– LZPD), the Land Office for Training, Further Training and Personnel Matters of the Police (Landesamt für Ausbildung, Fortbildung und Personalangelegenheiten der Polizei – LAFP) and the Land Criminal Police Office (Landeskriminalamt – LKA). The Land Office for Training, Further Training and Personnel Matters of the Police exercises administrative supervision in the area of civil service and labour law. In this area, the competent Land Ministry is the highest administrative supervisory authority, in all other matters, it acts as the immediate administrative supervisory authority. The police authorities must report important incidents in the Land to the Land Ministry of the Interior. Important incidents that are especially significant or urgent must be reported to the Land Office for Central Police Services in advance; this authority then informs the Ministry, the Land Criminal Police Office and, where necessary, the Land Office for Training, Further Training and Personnel Matters of the Police.

The plaintiff in the initial proceedings had been police commissioner of Cologne since 2011. On New Year’s Eve 2015/2016, the police responded to incidents in the area of the Cologne Cathedral and the forecourt of the central train station that caused a stir across Germany. Numerous victims were surrounded by large groups of people and then sexually assaulted; robberies and thefts were committed as well. On 18 January 2016, the plaintiff in the initial proceedings was relieved of his duties as police commissioner of Cologne with immediate effect and placed in temporary retirement. His challenge before the Administrative Court (Verwaltungsgericht) was rejected. On appeal, the Higher Administrative Court suspended the proceedings and referred to the Federal Constitutional Court the question of whether § 37(1) no. 5 of the North Rhine-Westphalia Civil Service Act violates Art. 33(5) of the Basic Law.

Key considerations of the Senate:

§ 37(1) no. 5 of the North Rhine-Westphalia Civil Service Act is unconstitutional because it is in breach of Art. 33(5) of the Basic Law.

I. 1. Art. 33(5) of the Basic Law provides that the law governing public service is to be regulated and developed with due regard to the traditional principles of the career civil service system. The traditional principles of the career civil service system encompass the core structural principles which were generally or at least predominantly recognised as binding, in particular under the Weimar Constitution, and were upheld during such an extended time period that a tradition has been established.

2. These core structural principles, which must be observed and therefore bar the legislator from effecting profound structural changes, include the principle of life tenure. The purpose of the principle of life tenure – in combination with the principle of alimentation, which guarantees appropriate remuneration and pensions in accordance with the office held by a civil servant – is to ensure civil servants’ independence in the interest of an administration in line with rule of law principles.

3. In the Basic Law’s democratic state under the rule of law, exceptions from life tenure in the civil service are only permissible under constitutional law under certain conditions: Firstly, they must concern areas where such exceptions are required by the particularities of the affected positions and the nature of the tasks performed. Secondly, exceptions must be suitable and necessary for addressing the particularities of such positions. Thirdly, the question of whether particularities following from the special position and tasks of a civil servant necessitate an exception from the principle of life tenure cannot be answered in general, but requires an individual assessment of the specific structures at issue that takes into account all significant aspects.

4. Political appointees as a category constitute a recognised exception to the principle of life tenure. The legal status of the office they hold is assigned to them for life. However, this office is subject to a largely unrestricted possibility of placing them in temporary retirement.

The status of political appointees is a narrowly defined exception from the typical case of civil service with life tenure. The interference with the principle of life tenure resulting from this exception can only be justified by the particularities of the position in question and the tasks performed. The exceptional category of political appointees is justified by the facts that, in light of their tasks, political appointees are especially reliant on the political trust of state leaders and that their views must be in continual agreement with the fundamental political views and objectives of the government. Political appointees hold ‘transformation offices’, whose tasks include translating political guidelines into administrative actions that are in conformity with both the law and the rule of law; this goes beyond the mere execution of existing statutory law that may contain some discretionary elements.

At what point a position must be assumed to be ‘political’ in this sense depends on a number of factors, which, in an overall assessment that must be carried out in each individual case, can provide indications that continued agreement of the political views of the official in question with the political objectives of the government is imperative to ensure an effective performance of tasks.

5. In principle, merely categorising a position as a so-called representative position does not justify making the official holding the position a political appointee.

II. The possibility, contained in § 37(1) no. 5 of the North Rhine-Westphalia Civil Service Act, of placing police commissioners, insofar as they are civil servants with life tenure, in temporary retirement at any time is incompatible with Art. 33(5) of the Basic Law. It amounts to an interference with the principle of life tenure, which is not justified by particular requirements arising from the position in question.

1. There are no particular factors inherent in the position of a police commissioner in North Rhine-Westphalia and the tasks associated with this position that could make it necessary, based on an overall assessment and appraisal of all relevant indications, to provide for the possibility of placing such a police commissioner in temporary retirement at any time and thereby interfere with the principle of life tenure. The exercise of this office does not require a particular level of political trust of the Land government, nor does it necessitate continued agreement with the government’s fundamental political views and objectives.

a) The range of tasks of a police commissioner in North Rhine-Westphalia and the specific way in which these tasks are performed argue against the need of such agreement on views and objectives. The limited decision-making powers accorded to police commissioners in North Rhine-Westphalia do not indicate that this position is a key political position for the effective implementation of the government’s political objectives, which would require a special degree of trust by the Land government.

The district police authorities essentially have three tasks: averting dangers to public security and order, the investigation and prosecution of criminal and administrative offences and the monitoring of road traffic. Insofar as the police authorities have decision-making powers in this regard, these tasks must be performed with due discretion. The district police authorities do not have any political leeway that goes beyond these decision-making powers.

b) Furthermore, given that the police authorities are subject to legal communication obligations, it is ruled out that police commissioners in North Rhine-Westphalia have decision-making powers that would be capable of justifying interference with the principle of life tenure.

According to two circulars of the Ministry of the Interior, ‘important incidents’ that occur in the Land must be reported by the police authority so as to enable the Ministry competent for interior affairs and/or the higher Land authorities for the police to make timely political, strategic, supervisory and tactical assessments and decisions. Important incidents that are especially significant or urgent must be reported to the Land Office for Central Police Services in advance; this Office then informs the competent Ministry, the Land Criminal Police Office and, where necessary, the Land Office for Training, Further Training and Personnel Matters of the Police. These communication structures clearly argue against categorising police commissioners as political appointees. This is because their primary aim is not to ensure that police commissioners advise the higher authorities or the competent Ministry in consideration of political priorities; rather these communication structures serve to shift decision-making powers to a higher level.

c) The organisational status of police commissioners in North Rhine-Westphalia likewise makes it appear unlikely that holding the position of police commissioner requires continued agreement with the fundamental political views and objectives of the government.

In particular, this is suggested by the fact that a district commissioner who serves as head of a district police authority is essentially equal to a police commissioner, although the continued agreement of a district commissioner’s views with the fundamental political views and objectives of the government is not guaranteed, given that district commissioners are elected officials. Rather, the fact that the Land legislator assigned the district commissioners – like the police commissioners – the tasks of head of a district police authority shows that the heads of district police authorities do not require a special relationship of political trust with the government in order to perform their duties. No differences can be ascertained between the tasks performed by district commissioners as heads of district police authorities and the tasks performed by police commissioners that would require that police commissioners agree with the political views held by the government, while not requiring such agreement of district commissioners.

Nor can it be derived from the number of district police authorities in North Rhine-Westphalia, of which there are 47 – 29 headed by district commissioners and 18 by police commissioners with essentially the same tasks – that there are any particular factors that could argue for categorising police commissioners as political appointees. While the mere number of posts with certain tasks among a certain group of officials cannot as such be the decisive factor in assessing the necessity of being able to place an official in temporary retirement at any time, there are additional factors that must be taken into account with regard to police commissioners in North Rhine-Westphalia. Firstly, all police commissioners of the Land must handle essentially comparable situations of danger on the basis of statutory law that is the same for all of them. Secondly, they are all at the same hierarchy level and their territorial competence is limited to a small part of the Land. In such organisational structures, establishing a particularly close relationship of trust with each individual police commissioner with a view to discussing and implementing political guidelines that are relevant for the entire Land would hardly be effective and is therefore unlikely to occur.

It can also not be ascertained that the Land government must rely on the active support of the police commissioners to implement its political objectives. In exercising administrative and technical supervision, the Ministry of the Interior is able to influence the actions of the police commissioners at any time.

d) Nor can it be established that the police commissioners in North Rhine-Westphalia must be categorised as political appointees on the grounds that their tasks could include advising the Land government. It cannot be ascertained that police commissioners are among the closest advisers of the Land government.

2. There are no other aspects that are capable of justifying the categorisation of a police commissioner in North Rhine-Westphalia as a political appointee in light of Art. 33(5) of the Basic Law.

III. § 37(1) no. 5 of the North-Rhine Westphalia Civil Service Act in the version of 21 April 2009 is incompatible with Art. 33(5) of the Basic Law and is therefore void. For the sake of legal clarity, the currently applicable version of the provision is likewise declared void. The aspects that render the provision unconstitutional apply in equal measure to its current version.