Definition and Legal Classification: Radicals in the Public Service
The term ‘radicals in the public service’ refers to individuals employed as civil servants, employees, or workers in the public sector who pursue activities directed against the free democratic basic order. In legal discussion and legislation, it mainly identifies those employees who are engaged in ‘anti-constitutional’ or ‘extremist’ activities or support such organizations.
The issue of so-called ‘radicals in the public service’ gained nationwide significance, at the latest, with the introduction of the so-called ‘Radikalenerlass’ (Radical Decree) in 1972 and remains highly relevant both legally and politically today.
Basic Principles of Public Service Law and Loyalty to the Constitution
Meaning of the Duty of Loyalty to the Constitution
German public service law is based on the principle of loyalty to the constitution, as codified in particular by the Basic Law (Art. 33 para. 5 GG) and the Civil Service Acts of the federal and state governments. The duty of loyalty obliges employees in the public service to actively and passively support the free democratic basic order of the Federal Republic of Germany and not to participate in any activities directed against it.
Accordingly, neither civil servants (§ 33 BeamtStG, § 60 BBG) nor employees in the public service may engage in activities that are contrary to the principles of the democratic constitutional state. Notably, membership in anti-constitutional parties or organizations is considered a serious indication of a violation of this basic duty.
Historical Development: From the Radikalenerlass to the Present
The ‘Radikalenerlass’ (Decree of the Prime Ministers and the Federal Chancellor dated January 28, 1972) was a direct result of intense political debates on how to deal with left-wing and right-wing extremist movements in Germany. The objective was to protect the state from infiltration by persons with anti-constitutional views.
During its implementation, comprehensive background checks were conducted on applicants for public service positions, particularly through inquiries with the Federal Office for the Protection of the Constitution and through ‘standard inquiries’ to the respective security authorities.
Legal Framework in Detail
Relevant Laws and Regulations
- Basic Law (GG): Art. 33 para. 5, Safeguarding the Traditional Principles of the Civil Service, especially the duty of loyalty
- Federal Civil Servants Act (BBG): §§ 60, 63, 64 (Duties of Civil Servants including the obligation of loyalty and moderation)
- Civil Servant Status Act (BeamtStG): §§ 33-38 (Duties of civil servants, prohibition of extremist activities)
- Collective Agreement for the Public Sector (TVöD): General duties of honor and official duties for employees
In addition, state civil servant laws and specific disciplinary laws regulate sanctions in the event of duty violations.
Definition of Radicals and Anti-constitutional Activities
The term ‘radicals’ is not precisely defined in law but is generally used as a collective term for persons who hold anti-democratic, extremist, or totalitarian positions or actively support such endeavors. This mainly covers activities directed against the free democratic basic order (§ 4 Federal Act on the Protection of the Constitution – BVerfSchG).
Anti-constitutional activities include, for example, membership in, promotion of, or support for organizations monitored by the Federal Office for the Protection of the Constitution or listed in its annual report.
Constitutional Requirements and Balancing of Interests
The requirements for loyalty to the constitution are based primarily on Art. 33 GG. However, it should be noted that fundamental rights, in particular the freedoms of expression (Art. 5 GG), association (Art. 9 GG), and occupation (Art. 12 GG), may be affected. Therefore, interventions in these rights, such as rejection or removal from service, are only permissible in cases of serious and concretely proven violations.
The Federal Constitutional Court has confirmed and clarified this in several decisions, for example, stipulating that mere membership in an anti-constitutional organization does not automatically lead to exclusion from the public service, but rather that an individual case assessment regarding active promotion of anti-constitutional aims must always take place.
Verification and Sanctioning Mechanisms
Check for Loyalty to the Constitution
During recruitment (‘reliability check’) in the public service, standard inquiries are sent to the respective constitutional protection authorities (§ 37 BeamtStG, corresponding provisions in the federal states). Suspicions can also be examined during ongoing employment. The central question is whether there are indications of a violation of the duty of loyalty to the constitution.
Disciplinary Proceedings and Dismissal
If there are credible indications that a public sector employee is engaging in radical, i.e., extremist or anti-democratic activities, formal disciplinary proceedings may be initiated. The following sanctions are possible:
- Warning or reprimand
- Reduction of remuneration or demotion
- Dismissal from service (§§ 23 BBG, corresponding state laws for civil servants)
Criminal sanctions may also be considered if the activities meet criteria such as incitement to hatred (§ 130 StGB) or support for anti-constitutional organizations (§ 85 StGB).
Legal Protection and Oversight Mechanisms
Affected individuals have the right to seek judicial review against measures taken by the employer. Reviews by administrative courts as well as the Federal Constitutional Court ensure that any interventions applied on a case-by-case basis are proportionate and in compliance with fundamental rights.
Distinction from Political Activity
It is essential to distinguish between permissible political activity of public service employees and participation in anti-constitutional or radical activities. Participation in democratic parties or trade unions is expressly permitted; however, support for or promotion of organizations aiming to undermine the constitutional order is prohibited.
The Federal Administrative Court regularly emphasizes that active support of anti-constitutional objectives, not merely personal convictions, is decisive.
Importance in the Current Context
Extremism Prevention and Further Developments
In recent times, the issue has again come into focus, both in connection with right-wing extremism and with other forms of extremism (e.g., religious or left-wing radicalization). New legislative initiatives at the federal and state levels address improved prevention, awareness, and consistent opportunities for review and sanctions.
At the same time, legal and societal discussions focus on striking a balance between state protection mechanisms and individual fundamental rights. Jurisprudence emphasizes that measures must always be restrictive and proportionate, in order to prevent an excessive broadening of the term ‘radicalism’ and impermissible intrusions into personal rights.
Literature and Further References
- Basic Law for the Federal Republic of Germany
- Federal Civil Servants Act (BBG)
- Civil Servant Status Act (BeamtStG)
- Federal and State Disciplinary Laws
- Decisions of the Federal Administrative Court and the Federal Constitutional Court
- Reports of the Federal Office for the Protection of the Constitution
- Specialist literature on public service law and constitutional protection
Summary: The term ‘radicals in the public service’ is in Germany a legally sensitive umbrella term for employees in the public sector who support activities against core principles of the Basic Law. The handling of corresponding suspected cases is strictly regulated, constitutionally secured by laws and court decisions, and subject to continuous development. There is a constant tension between effective state defense and the protection of individual fundamental rights.
Frequently Asked Questions
What legal principles govern the handling of radicals in the public service?
The handling of radicals in the public service is essentially governed by the Basic Law (especially Art. 33 para. 5 GG), the Civil Servant Status Act (BeamtStG), the respective state civil servant laws, and the Federal Act on the Protection of the Constitution. The so-called ‘Radikalenerlass’ (1972) emphasizes in particular that persons working in the public service must always guarantee their commitment to the free democratic basic order. Violations of the duty of loyalty can lead to disciplinary actions, transfers, suspensions, or even removal from service. Loyalty to the constitution is a core civil service principle, applying equally to both civil servants and employees in the public sector.
What review mechanisms exist to identify radicals in the public service?
Various review mechanisms exist to identify potential radicalization of public service applicants or current employees. Before employment, a standard inquiry is routinely sent to the Federal Office for the Protection of the Constitution to check for security-relevant information, particularly extremist activities or memberships. During ongoing employment, renewed checks may be conducted if there is concrete suspicion, for example through disciplinary proceedings or internal investigations. Furthermore, heads of authorities are obliged to report if there are reasons to believe that an employee poses a threat to the constitutional order. Data protection requirements, particularly those under the General Data Protection Regulation (GDPR), must be observed.
What legal consequences do radicals already employed in the public service face?
Employees in the public service who are found to pursue extremist activities or who do not uphold loyalty to the constitution must expect significant employment law consequences. These range from disciplinary measures such as reprimands and fines to suspension (preliminary removal from service) and removal from service under § 24 BeamtStG or the corresponding state laws. For employees covered by collective agreements, immediate termination is possible (§ 626 BGB). Criminal investigations may also be initiated if, for example, conduct crosses the threshold into incitement to hatred, high treason, or other relevant criminal offenses.
Are there differences between federal and state law in dealing with radicals in the public service?
Yes, there are distinctions between federal and state law. While the main principles are laid down by the Basic Law and the Civil Servant Status Act, each federal state regulates the precise employment law measures in its own state civil servant laws. The organizational structure of security checks can also differ by state. For example, procedures to determine lack of loyalty to the constitution, disciplinary measures, or the responsibilities of disciplinary authorities are governed by state law. For public sector employees, the provisions of the collective agreement for the public sector (TVöD or TV-L) also apply.
Who bears the burden of proof in establishing a lack of loyalty to the constitution?
In disciplinary proceedings, the employer generally bears the burden of proof. Lack of loyalty to the constitution or extremist activity must be established by the authority with sufficient certainty. Suspicions or mere indications are not enough; concrete and reliable facts are required. However, the person concerned has the opportunity to present exonerating circumstances as part of their duty to cooperate. In judicial disciplinary proceedings, the administrative court reviews whether the legal requirements for dismissal or other measures are actually met.
Can previously expressed opinions be used as evidence of radicalism?
Past expressions of opinion—such as in social networks, publications, or public appearances—can indeed serve as starting points for employment law actions if they indicate a rejection of the free democratic basic order. The decisive criterion is not the mere expression of opinion itself, but whether it is evidence of a solidified and actively promoted anti-constitutional attitude. Thus, a careful assessment of the overall conduct and the circumstances of the individual case must be undertaken by the employer or the administrative court. Freedom of expression under Art. 5 GG finds its limits, in particular, where active agitation against the constitutional order takes place.
