Year:    2009

Author:    Kucsko-Stadlmayer, Gabriele

Die Verwaltung, Vol. 42 (2009), Iss. 1 : pp. 27–53

Abstract

In Austria the legal development of Civil Service Law shows a clear turning away from the system of permanent public officials towards contractual employees with private law status. In the Austrian Federation, new appointments today only occur in the core executive areas, such as the police, the jurisdiction and the military system. In addition, many traditional attributes of the legal status of public officials have been removed, such as the pension scheme for all newly appointed officials, who are now subject to the general social security system. Simultaneously, the status of contractual employees has been upgraded, which in many fields now resembles the status of public officials. In particular, it provides a detailed legal basis, proper careers, and strong protection against dismissal. This development was possible because the Austrian Constitution only provides for an “institutional guarantee“ of public officials, but offers few other specific provisions regarding their legal status. In view of a politically-motivated drive towards a “unified civil service law“ rooted in private law, public law scholars are increasingly emphasising that certain structural status elements are necessary to ensure the external and internal independence of civil servants and administrative conformity with the rule of law, particularly in areas where fundamental rights are at stake. While this does not necessarily require endowing civil servants with formal public law status, it does require a series of safeguards that are inherent to such status. Even following the findings of the administrative sciences of the past years, the “management model“ has not completely displaced Max Weber’s “bureaucratic model“. In addition, it is increasingly confronted with a “governance model“ which is opposed to a narrow economic perspective, and accentuates strong, welfare oriented public institutions. All this suggests that in Continental Europe the traditional values of the permanent public officials will maintain their significance, at least for the core areas of public administration. The development of this legal status will have to take account of the need for administrative conformity with the rule of law, and combine in a reflected and balanced way the classical elements of legal stability with modern instruments of Human Resource Management.