Abstract

The evaluation of administrative services has become an increasingly relevant element of decision making in the public sector. This is mainly a result of the implementation of NPM ideas. In this article, five areas of reference are analysed that show the legal problems such evaluations bring about: Civil Service law is the area with the longest tradition of performance evaluation. A more recent development is the systematic use of performance indicators in relation to the steering of universities. In the context of the second round of the German reform of federalism, Art. 91d was included in the constitution, thereby demonstrating the political will to use benchmarking systems as an instrument to improve administration on all levels. For many decades, the civil courts have dealt with reviews of goods and services by an organisation founded and financed by the state, but new challenges are online reviews on web 2.0 based platforms. Finally, local government reforms in England give an impression of how elaborate systems of performance review might be designed and of the problems attached to them.

Viewed together, these areas of reference show how the courts can review systems of evaluation and their implementation in practice. In this context, the starting point for judicial review is individual liberties. They might be infringed by the evaluations – if not directly then on the basis of their results. Also, the right to equality gives the opportunity to scrutinize the systemic coherence of the review mechanisms. At the same time, it will be difficult for parliaments to decide on all performance indicators themselves. In contrast to the argument used by many administrations, data protection laws do not prevent administrations from giving necessary information to the evaluators. With respect to competences, apart from the responsible minister, both the chancellor and the government as a collective body generally have powers to order the various administrations to take part in evaluations.