Can politicians keep campaign contributions

Officials and politics

Civil servants, like all other citizens, have fundamental rights. At the same time, however, they are constitutionally subject to restrictions that can be traced back to the special requirements of their profession. This is exemplified by the question of political activity.

The basis of the civil servant relationship is the exclusive commitment to law and order, neutrality and independence from political and economic influences, and acting without regard to the person. "Civil servants serve the whole people, not one party;" according to § 60 BBG and § 33 Civil Service Status Act for all civil servants of the federal government, the federal states and the municipalities. Accordingly, the oath of service also applies to the Basic Law and the applicable laws, §§ 64 BBG, 38 Civil Service Status Act - not the government, not a party, and certainly not a person.

 

On this page:

Can a ban on political activity be derived from this?

How is this possible conflict between two constitutional goals resolved?

Can civil servants easily “change sides” and move into the Bundestag, a Landtag or a local parliament?

Are political officials a contradiction in terms?

 

Can a ban on political activity be derived from this?

The answer is no. Because the Basic Law is based on the image of the active citizen - and not only in connection with or in the run-up to elections. And civil servants here too are undoubtedly citizens.

 

How is this possible conflict between two constitutional goals resolved?

Civil servants can be politically active, get involved in a - non-unconstitutional - party and also strive for a mandate - and they can express their political opinion - but outside of the service. Consequently, they have to "maintain the moderation and reserve in their political activity that result from their position vis-à-vis the general public and from consideration for the duties of their office"; so § 60 Abs. 2 BBG, § 33 Abs. 2 Beamtenstatusgesetz. The limit is always reached where the positions represented - also outside of the service - are in contradiction to the constitutional basic order and thus the required advocacy of the free democratic basic order is violated.

Private opinion and official behavior must always remain separate. The principle is that any influence of personal convictions on professional behavior and decisions is incompatible with the principle of neutrality. Last but not least, the principle of equal treatment requires that comparable issues are treated equally. This does not rule out that in practice, when exercising discretion and when interpreting indefinite legal terms, a personal point of view becomes recognizable, precisely because a personal decision is also required here. This leeway is necessary because the administration has to remain flexible and because even the best legislator cannot regulate every situation in life. At least nobody would like to live in such a world (see reduction of bureaucracy).

Here, too, the corrective is the right to lodge an objection and thus to have the facts checked by a higher authority or to subsequently appeal to the court.

Political activity must neither lead to personal benefit, such as a faster career, nor to disadvantage. Keyword: office patronage. For the filling of public offices with constitutional status, Article 33, Paragraph 2 of the Basic Law, the performance principle applies. Public offices are to be awarded according to the criteria of suitability, qualifications and professional performance.

It is often objected that all these principles of a theoretical nature and in practice can never be controlled. It is true that there can be no absolute surveillance in a free society. If people didn't break laws and rules, there would be no need for criminal courts. There are, however, functioning mechanisms that ensure transparency and can detect abuses. For example:

  • Administrative decisions can be checked and, if necessary, corrected by the next instance and, above all, by independent courts in public proceedings.
  • In the case of personnel decisions, unsuccessful applicants can apply to the administrative court with a so-called competitor complaint and thus achieve an independent review. The obligation to advertise a substantial part of the positions creates further publicity. After all, the staff councils, with their rights of co-determination, are also an effective supervisory body.
  • The Federal Personnel Committee is to be involved as an independent body in a series of “special” personnel decisions, such as jump promotions. The same applies in many cases at the state level.

Even this cannot completely prevent patronage of office among party friends, but it is a very effective stop being put in place.

 

Can civil servants easily “change sides” and move into the Bundestag, a Landtag or a local parliament?

Yes, of course it is possible. The position as civil servant and as a member of parliament are not compatible with each other - not according to the obligation and not with a view to the principle of the separation of powers. Civil servants must therefore resign from their office during the mandate, as far as this is stipulated by law (Section 40 (1) BBG). For this purpose, the Federal Representatives' Act provides in Section 5 that the rights and obligations arising from the civil servant relationship are suspended for the period of membership in the German Bundestag. The same applies to elections to a state parliament if the incompatibility of office and mandate is stipulated there by law.

The same applies to an appointment as a member of the federal government or a state government. Here, too, the person concerned leaves office as a civil servant for the term of office (Section 40 (2) BBG, Section 18 Federal Ministers Act).

If the parliamentary mandate ends, there is a right to “return” to the previous employment relationship within a certain period of time. A circumvention of the principles of carriage is put to a halt. A short-term resumption of service for the purpose of a promotion - with the consequence of a later higher supply - and a subsequent return to parliament is not possible: § 23 BBG expressly stipulates a ban on promotion between two mandates.

The thesis is often put forward that civil servants tailor their privileges themselves because they are disproportionately represented in parliaments and, because of this majority, can influence the laws accordingly. Apart from the fact that this alleged disproportionality has long since ceased to be the case in many parliaments, practice shows that MPs are committed to their conscience and their “group line”, but not to their status. If this self-service thesis were actually true, then civil servants would hardly have had to accept massive sacrifices in recent years, such as extended working hours without wages, regularly delayed linear income adjustments, reductions in pensions or reductions or deletions of vacation pay and special allowances ("Christmas bonus").

 

Are political officials a contradiction in terms?

In a way, yes, because they act as an intermediary between administration and politics. Unlike “normal” civil servants, whose employment relationship is characterized by legal compliance and political neutrality and is designed for life, that is, to preserve independence, it can only be terminated in disciplinary proceedings or for reasons of age. Political officials, on the other hand, can be put into temporary retirement at any time without giving a reason, i.e. they can be recalled from their office. The reason is that because of their mediating role in their administration, they must remain in constant accordance with government policy. This only applies to a narrowly defined, legally defined group of people. The offices entrusted to these officials are key political positions that have to ensure the "smooth functioning of the transition from the political top to the hierarchy of officials". That is the definition in established case law.

The circle is narrowly defined: In the federal government, the positions are set out in Section 54 BBG: These include the offices of state secretaries, ministerial directors, d. H. usually the head of department in the federal ministries, the press spokesman for the federal government, the federal prosecutor or the president of the BKA.

Your task is to implement the political guidelines of the democratically legitimized government. You are of course bound by law and order. As conceptual work is carried out to a large extent in ministries in particular, from the formulation of bills for the Federal Cabinet to the design of administrative processes, this "position of trust" is also of particular political importance.