From “special power relations” o the comprehensive legal protection of employees in administrative courts on the basis of the norms of the basic law: the constitutional and legal principles of German law of public service

Abstract

The author of the article considers the concept and basis of the legal status of professional magistracy in the Federal Republic of Germany. It has been noted that for the interpretation of the meaning of this notion it is necessary to pay attention to the fact that officials are persons hired by the state, who are under “special public and legal official relations and relations of loyalty to the state”. The institution of professional magistracy should “in the interests of the public ensure that officials perform their tasks assigned to them by the Basic Law on the basis of legal and material independence, and regardless of political games of the authorities must ensure the administration activities”. It has been emphasized that the formation of magistracy has a long tradition within the German constitutional and administrative law. The author has provided examples from the decisions of the Federal Constitutional

Court regarding the peculiarities of the institution of professional magistracy. Special attention has been paid to the fact that the fundamental rights and guarantees of legal protection do not completely operate indefinitely (including from the point of view of historical development) in the law on public service – the law on civil servants. In this regard, the author has studied the issue whether an official is in the state of “special legal relations of power” at a somewhat lower level of protection comparing to an “average” citizen. It has been noted that this issue has been already clearly answered within the framework of the classical doctrine on the state and governance, through the development of the formula of “special legal relations of power”, where certain principles of the rule of law concerning officials were to be limited. It has been emphasized that the mentioned formula remained practically indisputable until the 1970s, when the Federal Constitutional

Court ruled in its decision on the execution of criminal penalties. The author has paid attention to the undeniable importance of such a step for legal protection in the field of public service law in terms of administrative justice as well.

The author has carried out a detailed analysis of the provisions of the Constitution relating to magistracy, namely the Art. 33 of the Basic Law, which is the basic norm for public service at the level of the German Federation and at the level of lands in the Federal Republic of Germany. The author has concluded that an official, despite his special status and his “involvement” in securing public order, remains the holder of fundamental rights almost without exceptions and, as a result, may fully appeal the actions and instructions of his employer on the basis of the rights guaranteed by the Art. 33 of the Basic Law, by filing a lawsuit to administrative courts.