The Public Administration in the process of the German unification -

1
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

2
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)

5
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 50s (dynamic pensions, right on
  benefits if needed ltin case of povertygt,
  extension of the Social State in the 60s and
  70s 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

8
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 UnificationOctober 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)

12
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

13
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)

14
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

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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 90s (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

17
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

18
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)