Definition and Significance of Alternative Service
The Term Alternative service refers in Germany to the fulfillment of a statutory service obligation as an alternative to regular military service. Thus, alternative service is to be considered primarily in the context of conscription and its historical as well as current forms. It is closely related to the fundamental right to conscientious objection under Article 4 (3) of the Basic Law. Alternative service primarily concerns persons who, for reasons of conscience, refuse service with arms, but are still subject to compulsory service.
Historical Development of Alternative Service
Introduction of Alternative Service
With the introduction of compulsory military service in 1956, the right to conscientious objection was also enshrined in law. The Military Service Act (WPflG) and the Civilian Service Act (ZDG) formed the legal framework. Alternative service – at that time referred to as civilian service – ensured that objectors could provide service in the interest of the common good without acting against their conscience.
Development and Suspension of Compulsory Military Service
Compulsory military service in Germany was suspended in July 2011 by the Military Law Amendment Act 2011. Since then, there has been no longer an obligation for military or alternative service; however, there are still provisions for a possible state of defense, including service in the event of tension or defense (Art. 12a GG). The suspension affects both basic military service and regular civilian service (alternative service).
Legal Basis of Alternative Service
Constitutional Regulation
The Basic Law guarantees in Art. 4 para. 3 GG the right to conscientious objection to military service on grounds of conscience. Anyone who does not wish to perform service with arms may be required to perform an alternative service. This obligation is also specified in Art. 12a para. 2 GG. Alternative service is thus a constitutionally provided measure of compensation that resolves the tension between compulsory service and individual freedom of faith and conscience.
Statutory Regulations
Under ordinary law, the legal framework for alternative service is set forth in the (applied until 2011) Civilian Service Act (ZDG). The ZDG regulates requirements, duration, modalities, and consequences of alternative service. In the event of tension or defense, special provisions according to the Military Service Act (WPflG) and Civilian Service Act (ZDG) apply.
Duration and Structure
Until 2011, the duration of alternative service was always longer than that of basic military service, and most recently amounted to 6 months. The design of the service was oriented towards activities serving the common good, in particular in the fields of social work, health care, nursing, as well as disaster protection. Service placements had to be officially recognized.
Recognition Procedure
Before commencing alternative service, a recognition procedure for conscientious objection was required. This entailed a written justification and, in some cases, a hearing. After recognition, the call-up for civilian service (alternative service) would follow.
Legal Status in a State of Defense
Even after the suspension of compulsory military service, Art. 12a GG allows for the reintroduction of both military and alternative service in the event of a defense situation. The legal bases for this are the Military Service Act and the Civilian Service Act in the versions last in force before suspension, supplemented by special regulations in the event of tension or defense.
Alternative Service Compared to Military Service
Equivalence and Differences
Alternative service is legally equivalent to military service insofar as it provides a fair balance for exemption from military service with arms in terms of scope, duration, and social value. Differences exist primarily in the nature of the tasks: While military service involves military duties, alternative service is performed in the civil, common-good oriented sector.
Legal Consequences of Non-Compliance
Refusal or failure to take up alternative service was, up until the suspension, classified as an administrative offense or, in serious cases, as a criminal offense (desertion) under the ZDG and was subject to sanctions.
Alternative Forms and International Classification
Civilian Alternative Service in Europe
Many European countries offer forms of alternative service for conscientious objectors, but the length, areas of duty, and recognition procedures differ greatly. The European Convention on Human Rights, in Article 9, establishes freedom of conscience as a standard, but does not enshrine a legally enforceable right to alternative service.
Alternative National Regulations
Some countries have specific forms of alternative service, such as ‘social service’ or a ‘civil protection service’, which are used in the context of disaster or emergency protection.
Current Legal Status of Alternative Service in Germany
Following the suspension of compulsory military service, traditional alternative service in Germany has also been abolished. However, the statutory provisions on recognition and service procedures remain in place for any potential contingency. As long as there is no obligatory service, there is no mandatory alternative service within the meaning of the Basic Law.
Significance of Alternative Service Today
Voluntary Alternative Service
Although there is no longer a legal obligation, the tradition of alternative service has given rise to a range of voluntary and honorary services, such as the Voluntary Social Year (FSJ), the Voluntary Ecological Year (FÖJ), and the Federal Voluntary Service have developed. However, these are not considered legal alternative service within the meaning of the Basic Law, as they lack a compulsory character.
Sources
- Basic Law for the Federal Republic of Germany
- Military Service Act (WPflG)
- Civilian Service Act (ZDG)
- Military Law Amendment Act 2011
- Bundestag documents on the suspension of compulsory military service
- Federal Ministry of Defence: Information on compulsory military service and alternative service
This article provides a comprehensive legal overview of alternative service in Germany, outlining its historical development, legal foundations, procedures, current status, and offering a legal comparison.
Frequently Asked Questions
What are the legal requirements for performing alternative service?
In order to perform alternative service in Germany, there generally needs to be official recognition of conscientious objection to military service with arms, based on Art. 4 (3) of the Basic Law. The application for recognition as a conscientious objector must be submitted in writing to the Federal Office for Family and Civil Society Functions. Thereafter, the motivations are reviewed and, where applicable, a hearing is conducted. Once the application is approved, the applicant is legally obligated to perform civil alternative service in lieu of military service. The statutory basis is the Act on Civil Alternative Service (Civilian Service Act – ZDG) in conjunction with the Military Service Act (WPflG). There are also age limits and deadlines for submitting the application; failure to comply may result in forfeiting the opportunity for alternative service.
What rights and obligations apply during the performance of alternative service?
During alternative service, those performing the service are subject to a special legal status, similar to conscripts in basic military service. The key obligations are to properly perform service at the assigned placement, as well as to comply with working hours and the instructions of the placement’s management. Refusal or improper refusal to perform service can lead to disciplinary or criminal consequences, such as fines or imprisonment. On the other hand, there are rights to appropriate remuneration (pocket money, accommodation, and meals), to vacation days according to the Federal Vacation Act, and to protection under statutory accident insurance and, if applicable, social benefits. Alternative service itself must generally not last longer than basic military service; any unequal treatment in terms of duration is not legally permissible.
In which institutions can alternative service be legally performed?
The Civilian Service Act forms the legal basis for the service placements for alternative service, according to which the service may only be performed in officially recognized institutions and services. Permissible placements are mainly in the social, charitable, ecological, and cultural sectors, for example, in hospitals, nursing homes, facilities for disabled assistance, rescue services, and in disaster relief. Each institution must be accredited and supervised by the Federal Office for Family and Civil Society Functions as a site for alternative service. Alternative service in commercial or unrecognized establishments is not permitted; activities must clearly serve the public or charitable interest.
What statutory requirements apply to the termination or shortening of alternative service?
Alternative service generally ends after completion of the legally prescribed duration, which usually corresponds to the duration of basic military service. Early termination is only legally permissible in certain exceptional cases, such as certified permanent incapacity, determination of severe personal hardship, transition to another statutory voluntary service (e.g., FSJ or FÖJ, where legally provided), or in cases of force majeure. Each early termination must be approved by the Federal Office. Shortening of alternative service is only possible within narrow statutory exceptions, such as subsequent entry into a permanent public service position that constitutes an equivalent activity, with the criteria for this conclusively regulated by law.
Can alternative service be retroactively recognized or performed at a later date?
According to the current legal situation, retroactive recognition of alternative service is not possible or only possible in strictly defined exceptional cases. Recognition as a conscientious objector must in principle occur before the start of military service, and alternative service must be commenced unbroken and at the prescribed time. Missing the statutory deadlines generally leads to loss of entitlement to alternative service. Subsequent completion is possible only in cases of proven and excusable hindrances, such as severe illness or force majeure, and requires express approval by the competent authority. In such special cases, the Federal Office for Family and Civil Society Functions decides on a case-by-case basis in accordance with statutory regulations.
What are the legal consequences of breaches of obligations during alternative service?
Breaches of duty during alternative service can, depending on the seriousness of the offense, have both disciplinary and criminal consequences. Violations of duty instructions or refusal to work are generally first reported by the placement. In case of repeated or serious breaches of duty, the Federal Office may impose measures such as warnings, reductions in pocket money, suspensions, or even initiate criminal proceedings under § 53 ZDG (unlawful refusal of alternative service). In the case of criminal acts, such as deliberate deception or document forgery to obtain alternative service, the general provisions of the Criminal Code apply.
What employment law protection regulations apply to those performing alternative service?
Those performing alternative service enjoy special protection against dismissal under the Employment Protection Act (ArbPlSchG). During the period of alternative service and for a period following its completion, ordinary termination of employment by the employer is only possible in exceptional cases and with the approval of the relevant authorities. In addition, there is a right to return to the previous or an equivalent position. The employer is obliged to count the time spent in alternative service as length of service and to pay the returning employee at least the same salary as comparable colleagues upon return. During service, the employment relationship is suspended, so there are no claims to employment remuneration, but only to benefits related to alternative service.
