The Public Administration in the process of the German unification -
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Transcript of The Public Administration in the process of the German unification -
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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
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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
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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)
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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)
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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)
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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)
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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
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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
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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)
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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
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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)
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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
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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)
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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
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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.
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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
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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
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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
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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
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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
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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‘)