The notion of civil service in Europe: establishing an analytical framework for comparative study, by Adam Krzywoń

Comparative study of the employment regimes of public officials in European countries requires an appropriate analytical framework, including definitions. This blog entry explores the meaning and scope of terms “civil service” and “civil servant”. It argues that a civil servant is an employee of the executive power, who has special duties and responsibilities, and should often meet specific requirements.

1. Civil service: sovereignty versus Europeanization

Diversity is one of the key traits of public administration systems in Europe. Despite ubiquitous transplants in the European administrative space, there is still a considerable heterogeneity as far as the model of public employment is concerned. The configuration of the civil service system and the rules governing public employment are seen as important parts of the state’s sovereignty. Since “la vie même du pays dépend de la fonction publique” (Charles de Gaulle), it is clear that national authorities are going to defend this important domain.

Nonetheless, although this sphere is facing the consequences of the European integration, the nation states are no longer seen as the only effective means of organizing social and political life. Both European Union law and the European Convention on Human Rights have transformative influence on national civil service, the status of civil servants, their rights and freedoms, and their accountability. These phenomena were one of the principal reasons to launch at the German Research Institute for Public Administration (FÖV) Speyer — a research project that comprehensively explores these transformations from the European perspective. Its main aspiration is to investigate to what extent European norms and converging national legal standards exist for the civil service.

There is no doubt that such a comparative study must be based on compendious and clear definitions. The lack of this analytical framework leads to certain shortcomings in the comparative study of European public employment law. That is why it is pivotal to establish a meaning of the terms “civil service” and “civil servant”. This blog entry, taking into account the arguments emerging both from international and constitutional law, explores the scope and denotation of “civil service” and “civil servant”.

2. International law, imprecise translations and broad terms

International law can be very useful in defining basic concepts such as civil service, public service, civil servant and public official, seeing as some important international treaties refer to them. Moreover, international tribunals—primarily the ECtHR and CJEU—have elaborated their own interpretation of these terms.  

Before going to the specific provisions of international law, the attention should be drawn to the problem of translations. The Universal Declaration of Human Rights from 1948 in Art. 21.2 stipulates that everyone has the “right of equal access to public service in his country”. The wide English term “public service” has been officially translated into French “fonction publique” (and Spanish “función pública”), which have a specific meaning in both these languages and traditionally refer to the group of government officials, who enjoy stable employment relation governed by public law. The same imprecise translations have been used in the official versions of Art. 25(c) of the International Covenant on Civil and Political Rights from 1966 (see English, French, Spanish versions). Despite this inconsistency, the official interpretation of these provisions is broad. Both treaties are aimed at ensuring universal access to all public positions, free from political interference or pressures. These provisions apply, therefore, to the exercise of all State’s powers, including legislative, executive and judicial branches.

Similarly, the terminology used by the International Labour Organisation is broad. The Labour Relations (Public Service) Convention (No. 151) 1978 refers to the term “public employee”, which includes “all persons employed by public authorities” (Art. 1 and 2). The Convention allows for national laws to exclude some categories, namely high-level employees, officials whose duties are of a highly confidential nature, or the members of armed forces and the police.

Although the ECHR does not provide for the right of access to civil service, this notion has been, in some occasions, analysed by the Strasbourg Court. The latter claims that a public servant is a depositary of public authority responsible for protecting the general interests of the State or other public authorities (e.g. armed forces and the police). The State, therefore, has a legitimate interest in requiring, of these officials, a special bond of trust and loyalty (Pellegrin v. France, 28541/95, 1999, § 66). The ECtHR argues that civil servants participate in the exercise of public power and that there is a special bond of trust and loyalty between the civil servant and the State, as an employer (Vilho Eskelinen and Others v. Finland, 63235/00, 2007, § 62). It also emphasizes that, although the judiciary is not part of the ordinary civil service, it should be considered a part of typical public service (Baka v. Hungary, 20261/12, 2016, § 104). The ECtHR distinguishes therefore between (ordinary) civil service and (typical) public service. The latter appears to be a broader category which includes holders of judicial offices.

Some other documents of the Council of Europe may also be mentioned. They regulate the status and codes of conduct of “public officials”. Generally speaking, this category includes all persons employed by a public authority.

The EU law guarantees the freedom of movement for workers, but limits the scope of this right by excluding “employment in the public service” (art. 45.4 TFEU). It is worth noting that the English term “public service” was used in the broad meaning of public administration, which is evident in the light of different official translations (French “administration publique”, Spanish “administración pública” or German “öffentliche Verwaltung”). Employment in the public service is, therefore, linked to the exercise of powers conferred by public law and duties designed to safeguard the general interest of the State. Nonetheless, according to the CJEU case law, this exception from the freedom of movement of workers should be interpreted very strictly (e.g. Commission v. Belgium, C-47/08, 2011, § 83-86).

The CJEU has also interpreted the term of civil service in the context of the non-discrimination rules. It indicated that employment models—primarily conditions of impartiality, efficiency, and independence of the administration—may imply a certain permanence and stability of employment. Those considerations of the civil service, which have no counterpart in standard employment law, explain and justify some limitations of the civil servants’ rights (Vernaza Ayovi, C‑96/17, 2018, § 46). Moreover, the Member States enjoy certain discretion regarding the organisation of their own public authorities and they can differentiate between some categories of civil servants (e.g. career civil servants and servants employed under fixed-term contracts, Valenza and Others, C‑302/11 to C‑305/11, 2012, § 57).

Concluding this part, it should be emphasized that international law regulates primarily different aspects of the right of access to the public service. The latter has a broad meaning, including all persons—public officials—employed by the authorities (executive, legislative and judiciary), both on central and local level. National authorities enjoy a margin of appreciation concerning their legal status and the model of the public service due to the fact that it concerns the sovereign exercise of power. The case law, however, nuances some aspects of the analysed terms, indicating different subcategories of the civil servants and excluding from the ordinary civil service the holders of judicial office.  

3. Constitutional law and diverse administrative cultures

The analysis of the constitutional law of selected European countries leads to the conclusion that civil service systems are legitimated by political and State traditions. That is why the constitutional framework will vary from country to country and political sciences have elaborated different administrative models in Europe (i.e. Rechtstaat model with important subfamily of “Napoleonic” states and the Anglo-Saxon notion of the “public interest”). This short analysis takes into account selected constitutional norms present in all these theoretical models.

General observation is that, on the national level in the majority of the European countries, there is a twofold regulation. On the one hand, constitutional norms guarantee an individual right of (equal) access to the public (civil) service (e.g. art. 33.2 of the German Constitution, art. 6 of the French Declaration of the Rights of Man and the Citizen from 1789, art. 23.2 of the Spanish Constitution or art. 47.2 of the Portuguese Constitution). This right has often a very broad personal scope and refers to the eligibility for any public office, including executive, legislative and judiciary powers.

On the other hand, the majority of European constitutions determine certain features and the organization of the national civil service system that reflect traditional principles. These principles started to be developed and conceptualized under the influence of political liberalism in the 19th century and are characterized by a professional body of servants, independent of changing political circumstances. The underlying aim of ensuring objectivity, neutrality, and rationality entails further requirements such as a high degree of specialization, as well as high substantive and ethical standards. It often implies the incompatibility with other public posts and functions (e.g. Art. 296 of the Portuguese Constitution, Art. 103 of the Greek Constitution and Art. 153 of the Polish Constitution). Also in the United Kingdom­—despite a different constitutional framework than in the continental Europe—core values of the civil service such as integrity, honesty, objectivity, and impartiality have been established in the Constitutional Reform and Governance Act 2010.

Modern European constitutions regulate this institutional aspect of the civil service in different ways due to diverse administrative traditions, legal cultures, and historical backgrounds. A common feature of European constitutionalism is to refer to the ordinary law for a detailed statutory regulation (e.g. art. 97 of the Italian Constitution, art. 103.3 of the Spanish Constitution, art. 34 of the French Constitution and art. 17.5 of the Hungarian Constitution). Consequently, the national legislator may adopt different organizational models. That is why—as the European Commission’s report shows—in some countries, a large share of government employment is based on civil servants, especially at central government level (e.g. Greece, France, Spain, Luxemburg), whereas other national law has made a substantial shift towards contractual employment (e.g. Denmark and Sweden).

4.  Civil service: employment in the government, duties and responsibilities

The terminological framework, tailored for the comparative analysis of the civil service law in Europe, should be based on the above-mentioned distinction between public service and civil service. Public service is a broader concept—a type of professional activity related to the exercise of every public power (executive, legislative, and judiciary).

The civil service is a core part of the public service. It constitutes a segment of the public workforce which includes the officials employed by the executive power, who have special duties and responsibilities, and should often meet specific requirements. The employment regime, however, is not decisive for the status of the civil servant.

First of all, the status of a civil servant is strictly related to the employment in executive power (government). Members of the other state powers—legislative and judiciary—do not form part of the civil service system. Equating employment in the government and the civil service enables both to rationally reduce the personal scope of the comparative research and focus on key persons holding public authority and those directly involved in the implementation of legislation and policy-making or law drafting.

The concept of executive power should be understood in a broad sense. This means that its notion is not limited to ministries. The term civil servant encompasses all persons who are employed in the governmental administration. Consequently, officials of bodies (institutions) under the supervision of the government and persons working in independent regulatory authorities or sub-national bodies, e.g., regions and municipalities, are included.

Secondly, some features of the employment relations are crucial for the status of a civil servant. On the one hand, specific qualification requirements may be established to get a position in the civil service. On the other hand, once entering the civil service, the official is obliged to meet the requisites of political neutrality, impartiality, and efficiency, as he/she participates in the exercise of power and safeguards the interests of the state. Employment in the civil service implies loyalty—also outside the workplace—to the state and to its democratic and constitution-based system, as well as may cause restrictions of certain rights (e.g., right to strike, right to form a trade union or political party membership rights).

Thirdly, as far as the employment regime is concerned, civil servant status is traditionally based on laws and regulations different from general labour law. Norms concerning public employment are usually distinct with regard to the private sector. The latter implies less flexibility (more unilaterality) when determining terms and conditions of employment. The degree of the flexibility, however, is different across Europe as some systems shift towards more contractual employment of the officials. This shows that the employment regime itself cannot be decisive for the status of a civil servant. A government official—with special duties and responsibilities—can be employed both under public or private law.

The aim of this blog entry is to create the analytical framework for a comparative study, which would explain the impact of the European law on the civil service systems and show how the employment of the government officials has changed in the recent decades. Thanks to the broad and clear notion of the civil service, it would be possible to verify the project’s principal hypothesis that civil service law developed into an international discipline requiring scholarly debates to gradually shed their introverted, nationally-focused character.

National authorities naturally enjoy a discretion concerning legal definition of the civil service. The body of public employees is as diverse as the administrative tasks of a modern democratic state. That is why the national legislator often reduces the personal scope of the civil service or creates different subcategories of servants.

Posted by Adam Krzywoń (Research Fellow at FÖV Speyer and Assistant Professor at the University of Warsaw)

Suggested citation: A Krzywoń, “The notion of civil service in Europe: establishing an analytical framework for comparative study”, REALaw.blog, available at https://realaw.blog/?p=640.