2. The definition of status in the Member States of the EU
2.1 The public law status
The status can be interpreted as the standing of a person before the law. The latter is still a more classical interpretation of the civil service status. It has developed because of the existence between a specific bond between state servants and the state. For a long time, the existence of specific statutes, regulations, working conditions and career patterns were justified with the specific link between Public Servants and the State. In the past, a number of countries adopted a general regulation applying to all state civil servants because of the specific duties and obligations of state employees when implementing governmental policies.
As a consequence, public employees are still treated differently to private sector employees.
18 Edgar Norman Gladden, Civil Services of the United Kingdom 1853-1970, Frank Cass, London 1967, p.1.
19 Ibid., p. 3.
According to the definition of the World Bank20 “several criteria continue to distinguish civil servant status from other employment arrangements. These criteria can be summarised as follows:
(1) Civil servants are appointed by decision of an authorised public institution in accordance with the civil service law. A decision by a representative of the State to appoint a civil servant must conform with the established rules that structure the hiring process.
(2) Once appointed, there are many constraints on dismissal. This is because civil servants are not simply employees of the state; they also have a constitutional role.
The intent of civil service legislation is to balance the requirement that these employees are responsive to the government of the day, with the parallel requirement that they respect and maintain state institutions over time. In other words, additional job security is provided in order to prevent short-term political pressures from leading to inappropriate personnel changes.
(3) There are more constraints on the actions of civil servants than on other groups.
Again, this is because of the strategic and constitutional role of civil servants. The Labour Relations (Public Service) Convention, 1982 (No. 151) provides details of the fundamental labour rights of civil servants (the right to organise, to participate in consultations or negotiations in relation to their terms of employment and to settlement of disputes). Article 1 of the Convention states that its provisions apply to “all persons employed by public authorities” but permits exemptions for “high-level employees whose functions are normally considered as policy-making or managerial, or ... employees whose duties are of a highly confidential nature.”
(4) There are more civil servants being employed by central government than by subnational government (in some cases only central government employs civil servants). There are many other employment arrangements in the public sector that provide something akin to civil servant status, under judicial career laws etc.
However, common usage requires that civil servant status refers to employees within civilian central government, or subnational government. The judiciary can often be employed under arrangements that also provide constitutionally-based constraints on dismissal, but are rarely known as civil servants21.
Staff employed on a public law basis are generally appointed by a unilateral official act on the part of the administration. One of the most classical model – according to the above mentioned definition – is the German model with clear distinctions between civil servants and other public employees.
20
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPUBLICSECTORANDGOVERNANCE/0,,cont entMDK:20133489~menuPK:286310~pagePK:148956~piPK:216618~theSitePK:286305~isCURL:Y,00.html (last time checked on 19 September 2012).
21 Ibid.
Table 2. Differences between civil servants employed under public law and employees under private law contract in German public administration
Civil servants Public employees
Public law (Civil Servants Act) Private law Official announcement (Ernennung durch
Hoheitsakt)
Common labour law
Regulation through law Regulation through contract and labour legislation
“Obligation to provide welfare rights”
principle (Alimentationsprinzip)
Mutual exchange principle (Gegenleistungsprinzip)
No right to strike Right to strike, sometimes restricted for some categories of staff
Loyalty and neutrality No obligations set by law
Job for life Unlimited contract or limited contract
Career system System with other organisational
characteristics
Special pension schemes General pension scheme
The relative importance of public law and labour law employees varies a lot from one Member State to another. In Greece, Spain, Romania and (on the federal level) in Belgium the primacy of public status employment is even laid down in the constitutions. Overall, since its origins in the late 18th century, the public law status has survived in almost all national public service systems. In this way it would be fair to say that this traditional element of a classical civil service is one of the few traditional principles which has endured over time (and differently to other established principles like for example the prohibition to go on strike, the career principle and the life-time principle).
Table 3. Civil servants’ legal status by type of administrative system in the EU
(Frequencies in parenthesis)
Public law status Civil law status Total Type of
civil service structure
Career structure 100 (18) 0 (0) 100 (18)
Non-career
structure 67 (6) 33 (3) 100 (9)
Total 89 (24) 11 (3) 100 (27)
Source: Christoph Demmke/Timo Moilanen (2010), Civil Services in the EU of 27, p. 53.
Private law based employees are generally employed on the basis of a contract of employment between the administration and the employee concerned. However, in eight EU countries public employees are also offered a public law status, i.e. in Cyprus, Estonia, France, Hungary, Luxembourg, Malta, Poland and Portugal
Table 4. Public employees’ legal status by type of administrative system (Frequencies in parenthesis)
Public law status Civil law status Total Type of
civil service structure
Career structure 41 (7) 59 (10) 100 (17)
Non-career
structure 13 (1) 87 (7) 100 (8)
Total 32 (8) 68 (17) 100 (25)
N.B.: Information on Italy and the Netherlands is missing.
Source: Christoph Demmke/Timo Moilanen (2010), Civil Services in the EU of 27, p. 53.
In some Member States, a clear preference for employment under public statutes can be seen.
This is evident in the Netherlands, Finland, France, Slovenia, the Netherlands, Malta etc. where almost all civil service staff are employed on the basis of a public law statute. In the countries like France and Belgium, where the official policy has been that civil servants are normally employed in accordance with public law, one can also observe that this official policy is not always applied in practice. In France, for example, a high percentage of all civil service staff are established civil servants who have tenure (fonctionnaire titulaire), but within the civil service (especially the civil service in the local and regional authorities and in the hospital sector), non-established staff are also employed in both public-law and private-law based employment patterns, such as unestablished civil servants (without tenure), and auxiliary and temporary staff. In Belgium, especially in Regional and Community administrations, a large number of contractual staff is employed. The same is true in Spain at the level of the Autonomous Communities and in the local administrations.
In several countries, this special status covers a larger proportion of central government employees22. If a global comparison is to be made of the respective forms of public status and private contract posts, there is a clear overall tendency for labour law contracts to be given much greater scope at the local authority level than at the central level. In several Member States, the differences between civil servants, public employees and private sector employees are still very marked, also in terms of rights and obligations.
22 Luigi Bordogna, Industrial Relations in the Public Sector, European Foundation for the Improvement of Living and Working Conditions, Dublin, 2007.