Contenu du sommaire : L'administration allemande après la réunification

Towards a Better Understanding of German Administration. Public administration in Germany is characterised by both continuity and change. Continuity, resulting from the presence of all the necessary elements to ensure the rule of law, change resulting firstly from unification but also from the restrictions which affect the administrative structures of western countries (such as reduced public funding and the quest for increased efficiency in administrative action). These changes must also be made in accordance with Germany's federal structure which demands the reconciliation of federal interests and those of the regional Länder. Finally, the integration of European Law equally provides a new challenge for German administration.

Classicism and Modernism in German Administration. The German administrative System is at once both modem and classical. It is modern because it encompasses a distribution of functions via a series of sub-systems and contains autonomous areas of activity. It is classical because its mode of organisation has lasted despite political changes, because it is enriched by a legal culture which respects the principle of legality and because it is integrated into the world of economies. As in the rest of Europe, the scarcity of public resources dominates the question of the evolution of Germany's administration. This does not necessarily mean a lesser role for the State, but involves a redeployment of State intervention in new areas of activity.

The Constitutional Framework. The Constitution provides for a strict separation between the federal administration and that of the Länder : there is no institutional or hierarchical link between these two levels. Competence in the field of administrative organisation, which is granted by the Constitution to the federal government, is to be interpreted restrictively, according to the principle that any important decision concerning the organisation of public administration requires intervention by the legislature. Administrative action is bound by the principle of legality. The Constitution and the constitutions of the Länder set out the principles which guide the operation of the civil service.

Administration and the Principle of Legality. As in any System governed by the rule of law, the administration in Germany is obliged to abide by the principle of legality. The application of legal norms which are binding upon the administration (such as the Constitution, EC Law, statute law, general principles of administrative law, administrative regulations and customary law) are often complex, given the specific nature of administrative activity. Moreover, the principle of legality is faced with new challenges linked to the emergence of new enquiries into the capacity of law to regulate activity.

The Federal Administration. Traditionally in Germany a distinction has been made between the supreme federal administrative authorities, which come directly under the remit of a constitutional organ or a political authority, and the subordinate federal administrative bodies, which have the more particular task of putting into effect and applying legal norms. A second distinction must be made between «the direct federal administration» which is heavily dependent upon the State and «the indirect federal administration» which possesses more autonomy. As in most other European States an important process of changing mentalities and changing modes of government has occurred in Germany with the aim of ensuring better administrative efficiency and greater concentration by the State on its essential functions.

The Länder Administration - The Case of Bade-Wurtemberg. The administrative organisation of the Länder falls within the competence of the Länder themselves. Despite this freedom, it is noticeable that the administrative Systems of the Länder are remarkably similar, so that one may legitimately confine oneself to describing only one of them. In Bade-Wurtemberg there is a devolved form of administration which is spread over three levels : high administrative bodies and superior sectors of the administration constitute the upper level, special superior administrative sectors form the intermediary level and subordinate administrative organs and special subordinate administrative sectors make up the lowest level. The government in the Land is the most important organ out of those which make up the highest level of administration.

Administration in Rural Areas. In Germany the local government in rural areas operates at two levels : municipalities and districts (Kreise). Districts have a certain degree of administrative autonomy and are composed of a representative assembly and an executive. Municipalities have greater prerogatives in the management of local affairs. Nevertheless, these two levels of local government often cooperate with each other and exercise their various powers jointly. Thus, the districts assist and advise the smaller municipalities, while at the same time they sometimes call upon the municipalities to carry out certain tasks.

Personnel Management. The fullness and the quality of the way in which the activities of the civil service are carried out depend upon good personnel management of those working in public administration. Several particular features as the training System and security of tenure strongly influence the solutions which can be adopted. Management practices tend to overcome the rigidity of recruitment conditions and lock of mobility. Previsional planing needs to be developed as well as the link between performance and promotions.

Judicial Review. Germany's administrative court structure operates at three levels. The first two levels are made up of the courts of the Länder (the administrative court and the superior administrative court) whose functioning and organisation does not vary much from Land to Land. At the top of the hierarchy administrative disputes are settled by the Federal Administrative Court. The Constitution of 1949 lays down the constitutional principle of control over the administration to be exercised by the administrative courts, and a statute gives these courts competence in all disputes concerning matters of public law.

Public Administration in Germany and France : Different Systems, Common Values In spite of exchanges and mutual influences which have existed for two centuries there are a number of differences between the French and German administrative Systems. The most important differences relate, on the one hand, to the theoretical underpinnings upon which the legitimisation of the role of the State rests, and, on the other hand, to the legal form of the State, which is federal in Germany and unitary in France. But, nevertheless, the ways in which the two countries have chosen to adopt their System of public administration are often of a similar nature and bear witness to the existence of common values.

Two Bodies of Law : An Essay on the Notion of Régulation. Regulation (régulation) concerns practices which are ill-defined both on an empirical and on a scientific level. The law appears only to impose legal norms of an abstract and general nature, beyond which nothing seems to exist other than commentary upon, and interpretation of, statute law. It is believed possible, at this juncture, to demonstrate, not only that regulatory practices are identifiable at an epistemological level, which concerns neither the imposition of regulations nor questions of interpretation, but that they are laid down in positive law and respond to the requirements and conditions of what is the necessary modernisation of the administration.