Functional Reservation
The term Functional Reservation refers to a central legal restriction in the area of public service law in Germany. The functional reservation stipulates that certain tasks of public administration may only be performed by those granted public-law status—with a particular focus on civil servants. This regulation primarily serves the protection of important state functions and ensures the neutrality, reliability, and adherence to the law in government activities.
Conceptual Foundations and Statutory Basis
Definition
The principle of functional reservation means that specific sovereign activities, in particular the exercise of intervention and performance administration, may only be entrusted to public officials who have a special public-law relationship with the state.
Legal Regulation
The functional reservation is stipulated in various legal provisions; particularly relevant is Article 33 Section 4 of the Basic Law (Grundgesetz, GG) of the Federal Republic of Germany:
“The exercise of sovereign authority as a permanent function is, as a rule, entrusted to members of the public service who are in a public-law service and loyalty relationship (civil servants).”
This constitutional provision clarifies the functional reservation and makes clear that state tasks of a sovereign nature are, in principle, reserved for persons with a specific public-law service and loyalty relationship.
Purpose and Objectives of the Functional Reservation
The functional reservation serves various purposes:
- Protection of the state’s monopoly on force: Sovereign powers, such as issuing administrative acts, issuing prohibitions, or enforcing measures, are fundamental aspects of state authority.
- Ensuring compliance with the law: The reservation ensures that holders of these functions act with particular loyalty and in accordance with the rule of law.
- Protection of state neutrality and integrity: By assigning these actions to civil servants, it is ensured that administrative activities are not influenced by private interests.
Scope of Application and Distinctions
Sovereign Functions
The functional reservation only applies to tasks classified as sovereign in nature. These include:
- Application of coercive measures (e.g., police force)
- Enforcement of administrative law through administrative coercion
- Issuance of burdensome administrative acts
- Infringement on the fundamental rights of third parties in the public interest
On the other hand, tasks of the so-called private sector administration, such as the operation of public institutions (as long as no sovereign powers are exercised), do not fall under the scope of the functional reservation.
Civil Servants, Employees, and Third Parties
The relevant sovereign tasks may only be carried out by civil servants or persons with a comparable public-law status. Public-law employees or private third parties may only perform such functions if explicitly permitted by law and if no core responsibilities are transferred.
Historical Development
The functional reservation is closely linked to the development of the professional civil service in Germany. As early as the 19th century, the principle was formulated that central sovereign functions should only be performed by persons directly bound to the state. With the enactment of the Basic Law, this principle was legally established and expanded in Article 33 Section 4 GG for the first time.
Case Law and Interpretation
Decisions of the Federal Constitutional Court
The Federal Constitutional Court has concretized the functional reservation in several landmark decisions. It emphasized that adherence to the law and the special loyalty relationship between the state and civil servants is an objective prerequisite for the assignment of sovereign duties. Furthermore, it was established that private-law contractual arrangements are generally insufficient for the permanent transfer of core tasks of state administration.
Limits and Exceptions
The legislator can, in individual cases, provide that certain non-essential sovereign tasks may be delegated to private third parties (for example, appointed entities in the field of technical inspection such as TÜV or DEKRA). However, core tasks—such as those of the police, tax administration, or judiciary—are excluded from possible privatization.
Functional Reservation and Privatization
Transferability of Sovereign Tasks
Due to the requirements of Article 33 Section 4 GG and the functional reservation, privatization of sovereign tasks is only permissible within narrow limits. Legislators must always examine which tasks must necessarily remain within the sovereign domain.
Consequences of Impermissible Transfer
The impermissible transfer of sovereign duties to private parties may lead to any resulting actions and administrative acts being unlawful. Such oversight is regularly provided by administrative courts.
Functional Reservation in Comparison (International)
Other countries have similar concepts tying the exercise of sovereign tasks to public officials. However, the specific design can vary significantly, especially with regard to the distinction between public administration and private service.
Literature and Further References
- Basic Law for the Federal Republic of Germany, Article 33 Section 4
- Federal Civil Servants Act (BBG)
- Batke, The Functional Reservation of Art. 33 Section 4 GG, NVwZ 1999, p. 957 ff.
- Pieroth/Schlink: Basic Rights – Constitutional Law II
Summary
The functional reservation constitutes a significant constitutional restriction on the transfer of sovereign duties and ensures that these are only carried out by persons with whom the state maintains a special public-law service and loyalty relationship. This serves to protect the integrity, neutrality, and legal compliance of government administration. In practice, the functional reservation is crucial for delineating the limits of privatization and safeguarding public interests in administrative actions.
Frequently Asked Questions
Who bears the burden of proof for the effectiveness of a functional reservation in an employment relationship?
The burden of proof for the effectiveness of a functional reservation generally lies with the employer. This means that the employer must demonstrate that a valid and clearly formulated functional reservation is part of the employment contract and was transparently communicated to the employee at the time of contract conclusion. The functional reservation must be specific enough that the employee can assess at contract conclusion what changes might arise for them. Vague or ambiguous provisions are at the employer’s expense. Furthermore, the employer must prove that they acted in accordance with reasonable discretion (§ 315 BGB) and that there was no arbitrariness. In case of disputes regarding the effectiveness or scope of the functional reservation, labor courts always examine whether all formal and substantive requirements have been met.
What is the relationship between the functional reservation and the employer’s right to transfer duties pursuant to § 106 GewO?
The functional reservation supplements and specifies the statutory right to transfer duties pursuant to § 106 German Trade Regulation Act (GewO). While § 106 GewO generally allows employers to determine the content, location, and timing of work performance at their equitable discretion, the individual employment contract usually restricts this right—such as through a specific job description. However, if the employment contract contains a functional reservation, the employer’s right of direction is accordingly expanded, allowing assignment of other equivalent duties to the employee. The scope of the right of transfer in these cases depends primarily on how broadly the functional reservation is defined. A broader functional reservation increases employer flexibility but is limited by the requirement of equitable discretion and the principle of reasonable expectation for the employee.
What legal limits must be observed when exercising a functional reservation?
When exercising a functional reservation, the employer is bound by various legal limits. First, the standard of reasonable discretion under § 315 BGB applies: the decision to exercise a functional reservation must be objectively justified, proportionate, and made with consideration for the interests of both parties. Prohibitions on discrimination under the General Equal Treatment Act (AGG) must not be violated. In addition, no unreasonable or significantly worsened working conditions may arise as a result of the change, unless this has been expressly included in the contract. In every case, the employer must also observe the co-determination rights of the works council under §§ 99, 102 Works Constitution Act (BetrVG). Abuse of the functional reservation—for example, to disadvantage an unpopular employee—is legally inadmissible and can render the measure invalid.
Can a functional reservation also be agreed upon retroactively, and what requirements apply?
A retroactive agreement of a functional reservation is legally possible, but requires the employee’s consent. This change constitutes a contractual amendment and is therefore subject to the general rules on the conclusion and amendment of employment contracts. Unilateral introduction by the employer is not permissible. The employee must explicitly consent to such a change, either within the framework of a written amendment agreement or implicitly, for instance, by continuing to work without objection under the new conditions. Retroactive functional reservations are also subject to the transparency requirement under § 307 BGB, meaning the clause must be clear and not unexpected. If introduced by way of a notice of change, the requirements of § 2 Dismissal Protection Act (KSchG) must also be observed.
What impact does the functional reservation have on the participation rights of the works council?
The functional reservation significantly affects the participation rights of the works council. Basically, the works council has a co-determination right under § 99 BetrVG for every transfer within the meaning of § 95 Section 3 BetrVG. Assignments based on a functional reservation can constitute transfers if the employee’s scope of work changes substantially or if the new duty lasts more than one month. In this case, the employer must obtain the works council’s consent before implementing the measure. If consent is refused, the employer must resolve the situation through court. The works council may also have participation rights (§§ 111 ff. BetrVG) in organizational changes related to the application of a functional reservation. Therefore, the rights of the works council are not overridden by a contractual functional reservation.
Does the functional reservation apply without restriction to employment relationships bound by collective agreements?
In employment relationships covered by collective agreements, the validity and scope of a contractual functional reservation must always be assessed in light of the relevant collective rules. Collective agreements often contain provisions on job classification, job descriptions, or transfers that can limit the employer’s right to direct and the use of functional reservations. According to the principle of favorability in § 4 Section 3 TVG, an individual contractual provision, such as a comprehensive functional reservation, can only apply if it is more favorable to the employee than the collectively agreed terms. Deviations to the employee’s detriment are invalid unless the collective agreement contains an opening clause. Before implementing a functional reservation, the employer must therefore check whether collective agreement law stands in the way.
Does the employee have the right to a salary adjustment when a functional reservation is exercised?
An employee is only entitled to a salary adjustment as a result of exercising a functional reservation if the newly assigned role has a higher requirement profile or is usually remunerated at a higher rate. This is the so-called “fallback principle”: If the employee is transferred to a higher-value position without limitation in the functional reservation, there may be a claim to the normal remuneration for the new position (see BAG, judgment of 29.01.2008 – 9 AZR 393/07). Conversely, a transfer to a lower-value position must not result in a pay cut, unless this is expressly and effectively regulated by contract or collective agreement. Details always depend on the specific content of the functional reservation and any other contractual or collective terms.
