Transcript The Public Administration in the process of the German

The Public Administration in the
process of the German unification The introduction of the Western model in
East Germany
Professor Dr. Dieter Schimanke, State Secretary (on
leave), Hamburg/Magdeburg, Senior Expert to GTZ
NAPA, Kiev, April 17, 2008
Question
How to unite (merge) two states?
• The political and legal background of the two
states (on the territory of the ‚German Empire‘);
the preamble of the West-german constitution
and a decision of the Supreme Court of 1973
(Grundlagenvertrag)
• The Artikel 23 of the Constitution and the
political process from November 8th, 1989 until
October 3rd, 1990
I. The basic principles
The 5 principles of the (west-)German
constitution (‚Basic Law‘):
• Republicanism
• Principle of Democracy
• Principle of ‚Rechtsstaat‘ (more than ‚rule of law‘)
• Principle of the Social State
• Principle of the Federal State
Note: These principles are exempted from change (Art. 79 III)
The principle of Democracy
• No definition on Democracy given in the German
constitution
• Democracy in the more formal sense: the supreme
power is transferred from the sovereign people to
the organs of (representative) government
• Democracy in a substantial sense: all areas of the
society and political system have to follow the
principles of participation and respect of the rights of
the citizen (Prinzip der Öffentlichkeit)
The principle of Social State
• Provision of social laws (Social Code and specific laws); social
welfare to balance the negative effects of a market economy
• Development of social programmes and laws since the late
50‘s (dynamic pensions, right on benefits if needed <in case of
poverty>, extension of the Social State in the 60‘s and 70‘s in
several fields, like housing, education, families, active
employment policy)
• Finally a complex system of social welfare: 10 – 12 (sectoral)
areas and institutions on all levels of the politcoadministrative system and in the intermediary sector (social
security, welfare organisations)
The principle of ‚Rechtsstaat‘ (1)
• ‚Rechtsstaat‘ in a formal sense (see ‚rule of
law‘)
• ‚Rechtsstaat‘ in a substantial sense (=
substantial rightness and justice; fundamental
constitutional values)
The principle of Rechtsstaat (2)
Basic elements:
• Basic rights
• The separation of powers
• The legality of administration (priority of statute,
statutory reservation/parlamentary reservation)
• Legal certainty
• Principle of proportionality
• Right of judicial review
The system of Public Law
• A clear hierarchy of legal regulations: constitution,
Federal laws, State laws, bye-laws and administrative
guidelines
• (including European laws and regulations)
• Methodological specialities in public laws: discretion
(Ermessen) and margin of appreciation
(unbestimmter Rechtsbegriff)
• Subjective public right (right to get an administrative
act)
• Tools: Administrative act and public law contract
The Architecture of a decentralized
system of public administration
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Federal and State administration; the Article 83
Multi-level State administration
The level of county (Kreis, rayon)
The level of cities and communes
The last two levels have local self –government
A German speciality: rayon and communal
administrations have a dual function: the cover tasks
of state and of local self-government (but the
‚Landrat‘ and the mayor is elected by the local
citizens)
II. The Unification:
October 3rd, 1990
• The transfer of the West-German politicoadminstrative system to the East from one day
to the other (The West-Mark came in 3
months earlier)
• 14 districts (oblast) were abolished, 5 new
states were established
• The rayon administrations had to be
established
• The administrations of cities and communes
had to take over new functions and tasks
The ‚New Laws‘ as a challenge
• The new laws (Federal laws, acquis
communeautaire, drafting state laws, drafting
local bye-laws)
• How to deal with legal documents? (Methods
of interpretation)
• And: delegation of responsibilities (final
decision taken on a level as low as possible)
Courts
• The outstanding function of courts in the German
system (independence, right to appeal against all
decisions of public administration affecting the rights
of the citizen), Art 19 chapter 4
• East-Germany: the system of a single court on the
different levels; West-Germany: the differentiation
into functional courts (private law, public law:
administrative law, tax law, social law etc.)
• The Supreme Court
• Problem: recruiting and training judges
Taxes and Finances
• The complex system of taxation (tax laws and
bye-laws) and the distribution of tax revenues
between the different levels (central,
state/region, local)
• The responsibilities for the own budget on
each level
• Financial equalization – with tremendious
expansion after unification (two phases: 19901995; 1996 – 2019)
Personnel
• Differences in structures West-East:
East: one status for the whole working class in principle
West: special status for the public sector, divided into Civil
Servants and Public Employees
• How to transfer the people in the public sector into civil
servants and public employees ?
• How to handle people involved in the intelligence
department?
• To improve the knowledge and skills: experts from partner
organisations in West-Germany; training programmes
• The level of salaries
The principles of Civil Servants
• The constitution (Art. 33)
• The principles in the laws on civil service:
recruitment and promotion based only on
qualification and performance; career system
in four groups and 16 classes, combined with
the merit system; objectivity, neutrality,
impartiality, principle of ‚alimentation‘, no
right to strike etc.
Selected challenges: Economy and
Labour Market
• East Germany (1990): 16 million inhabitants, 9
million employed people; during the 90‘s (and
still ongoing): decreasing population (under 14
million), and about 5 million working places
• Restructering the economic sector, especially
the transfer of the combinats into new
structures (political priority was given to
privatization)
• The level of salaries and the question of
income and provisions for pensions
Selected challenges: The system of
Education
• The change of an unitarian system (East) into a
divided system (West)
• What to do with the East German teachers?
• Challenges and changes in universities: e.g.
faculties of economy, law, social sciences,
engineering
• Transfer and recruitment of personnel
Selected challenges: Social
Protection and Health Care
• The unitarian system of East Germany: one social
security, a public system to provide services
• West Germany: 5 branches of social security with a
high number of social security agencies;
and a high number of providers of services,
especially in the health care system
• The improvement of infrastructure
• The financing of the social security system
• The special task of the social security on
unemployment during the process of the German
unification
Selected challenges: Infrastructure
• The investments in traffic, housing, urban
development, social and health care
infrastructure
• Financing: direct financing, through fiscal
transfers and private capital (incentives by tax
reduction)
• Evaluation: good results and mis-allocation
Summarizing remarks
The German politico-administrative system after
18 years of unification
1. The story of public administration is mainly a
story of success
2. The story of unification of two states and
societies is still an open challenge
Famous Quotations:
Willi Brandt (former chancellor): Es muß
zusammenwachsen, was zusammen gehört
(‚grow together‘)
Helmut Kohl (former chancellor): Wir werden
aus Ostdeutschland blühende Landschaften
machen (‚flowering countrysides‘)
Bärbel Bohley (grass-route movement in the
former DDR, ‚Bürgerrechtlerin‘): Wir haben
Gerechtigkeit gesucht und den Rechtsstaat
bekommen (‚Rechtsstaat instead of justice‘)