Äußerung von Beamten im Konflikt mit Dienstpflichten

Abstract

Summary

Over the past decades, the adjudication handed down by the German administrative courts has consistently derived from the principles of the professional civil service (Grundsätze des Berufsbeamtentums) enshrined in Article 33 paragraph 5 of the Grundgesetz (GG, Basic Law) and in the blanket clauses of the Beamtenstatusgesetz (BeamtStG, Act on the Status of Civil Servants) as well as the Civil Servants Acts applicable at the Federal and the Land levels the duties of civil servants, judges, and soldiers to adhere to the German Constitution and to be loyal to it, to maintain their impartiality, and to protect the respect in which their employer is held, as well as the trust that their employer and the general public place in them, in any statements they may make as part of their service, but also outside of an official context.

The present contribution sets out the historical developments and milestone decisions in this regard, such as the judgment handed down by the Bundesverfassungsgericht (Federal Constitutional Court) of May 22nd, 1975, which refused to grant employment as civil servants to applicants seeking such employment who were involved with the Deutsche Kommunistische Partei (DKP, German Communist Party). Furthermore, the contribution addresses the various consequences, based on their severity, which violations against the duty to adhere to the German Constitution, to remain neutral, and to exercise restraint will have, along with the consequences of violations of the duty to observe secrecy in all matters pertaining to the service. Based on the circumstances of the cases adjudicated by the courts, the requirements made on civil servants’ conduct and the „red lines“ constituting a dereliction of official duties when crossed are discussed. Where the punishment under disciplinary law of violations of said duties is concerned, the administrative courts premise their decisions on the assumption that civil servants, judges, and soldiers are aware of what is expected of them.

However, the articles’ main focus is on how the duty of neutrality was derived, in terms of jurisprudence, in the court rulings most recently handed down on the „Lights out!“ call by the mayor of a city in North Rhine-Westphalia. The municipal leader had instructed all city-owned buildings to turn their lights off, on the evening of an assembly that had been previously registered with the city administration, in the interests of damaging the attractiveness of the demonstration and its overall impact. While the administrative courts have relied, in dealing with that particular call to action and with other statements made in the battle of public opinion, on the general duty of the state to remain objective and to adhere to the principle of neutrality where party politics are concerned, the present contribution highlights the fact that the duty of neutrality as stipulated by the laws governing civil servants must not be disregarded when this group of people voices religious or political sentiments, nor must the official duties subject to sanctions under disciplinary law be ignored.