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 politco-administrative 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

• 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 politico-adminstrative 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: 1990-1995; 1996 – 2019)

Personnel

• Differences in structures West-East:East: one status for the whole working class in principleWest: 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‘)