JOURNAL ARTICLE
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Das Recht des öffentlichen Dienstes – Grundlagen und neuere Entwicklungen
Die Verwaltung, Vol. 51 (2018), Iss. 1 : pp. 1–38
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Prof. Dr. Anna Leisner-Egensperger, Lehrstuhl für Öffentliches Recht und Steuerrecht Friedrich-Schiller-Universität Jena, Carl-Zeiss-Straße 3, 07743 Jena
Abstract
A structural element of the legal bases of civil service law is its two-tier structure. In recent times the German Constitutional Court has granted the public sector organisational discretion for the recruitment of teachers and professors as civil servants or private employees. In practice, this is exercised according to financial criteria, which causes general understanding for the specific values of an official status to dwindle. Art. 33 paragraph 4 GG as a binding constitutional norm has to be examined in three steps: First, the general legitimation of a career as public officer has to be proved; then the content of the tasks and the typical forms of their fulfilment must be described. This leads to the base of a constitutional requirement to employ school and university teachers as civil servants. The discussion on a strike ban under civil service law, which also concerns the state monopoly of sovereign powers, has been object of two decisions concerning Art. 11 of the European Convention on Human Rights. The different reactions to that by German courts have caused considerable legal uncertainty; a fundamental decision of the German Constitutional Court is imminent. The orientation and guiding role of the Strasbourg rules must be the starting point for international law-compatible course correction, which treats strike law uniformly for all civil servant categories, though no longer in relation to their status but to their function. The jurisdiction has to assure practical concordance between Art. 9 paragraph 3 and Art. 33 paragraph 5 German Constitution.