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WG Independence-Efficiency > Meetings > Würtzburg 2007 > Questionnaire on the Independence of administrative Justice: Germany

Questionnaire on the Independence of administrative Justice: Germany

I./ Personal Independence of the administrative Judge: 

Indicate the ways in which judges are selected/appointed for/to administrative Justice as well as the terms and nature of the judicial selection/appointment:

Describe the selection/appointment procedure that is applied in your country

Only persons having completed law studies with the first State Examination in a university and who completed the preparatory course for the second State Examination may carry out the duties of a judge. Judges are selected by the relevant ministry – usually after being interviewed by the department of personnel and/or the president of the superior administrative court – and appointed by the minister of justice. In certain states, judges are appointed by an appointing commission made up of judges and members of Parliament. Federal judges are elected by a commission consisting of state ministers and an identical number of federal deputies.

What are the terms of this procedure?

There are no mandatory terms, the appointments are made upon vacancy of a position. An election of federal judges usually takes place once a year. 

Is there specific professional background such as previous work record in the administration or general legal training included?

There do not exist any legal requirements in this respect. Judges are usually appointed shortly after taking the second State Examination.

What are the possible contents examined during this procedure?

As the legal aptitude has already been demonstrated by the exam results, the interview will generally concentrate on other qualities of the candidates, especially social skills.

Who makes the decisions in the course of the selection/appointment procedure and who selects and appoints the aforementioned decision –makers?

See above

Does the law provide for judicial remedies against decisions concerning appointment/selection?

As the selection or non-selection decision is an administrative decision, it can be challenged before the Administrative Courts.

Does there exist any difference in the way the selection/appointment of judges of the civil/penal courts takes place?


Is it possible for “external candidates” to be appointed as judges at different court levels and instances?

Yes, but external appointments only happen rarely.

Are those legal provisions concerning the ways of selection/appointment of judges constitutionally entrenched?

Art. 95 of the German Constitution (Grundgesetz) provides for the election of federal judges by a commission made up of competent ministers from the Länder and an identical number of Bundestag deputies. Art. 98 Grundgesetz states that the Länder may set up a magistrate appointing commission.

Describe in brief the conditions of service and tenure (security of tenure, suspension and removal, transfers etc.) of the judges:

Is the term of judicial appointment for life?

Yes, until retirement age (65, soon to be raised).

Is it possible to extent the term of service of judges beyond retirement age? In this case who has the power to take the decision?


Is it possible to appoint temporary judges?

Civil servants can be appointed as judges by commission (Richter kraft Auftrag) for a period of up to two years, if later he is meant to be appointed as a regular judge.

Is it possible for the judge to be removed or transferred and under what specific terms?

Art. 97 Abs. 2 Grundgesetz states: “Judges appointed permanently to full-time positions may be involuntarily dismissed, permanently or temporarily suspended, transferred, or retired before the expiration of their term of office only by virtue of judicial decision and only for the reasons and in the manner specified by the laws. The legislature may set age limits for the retirement of judges appointed for life. In the event of changes in the structure of courts or in their districts, judges may be transferred to another court or removed from office, provided they retain their full salary”.

The German Judiciary Act (Deutsches Richtergesetz) specifies the reasons for which a judge can be dismissed or transferred. In particular, a judge loses his appointment if he is sentenced to a punishment of at least one year imprisonment for an intentional criminal act. A judge can also be dismissed for disciplinary reasons.

An involuntary transfer or an involuntary retirement is possible in the interest of the judiciary if the action is imperative in order to avoid grave damage to the judiciary; the exercise of a judge’s judicial function cannot constitute such an interest of the judiciary.

Where does the power of removing or transferring judges from one office to another lie?

With a special tribunal for judges (Richterdienstgericht)

Is it possible to transfer between the different divisions and types of courts?

Yes, with the consent of the candidate.

Is it possible to transfer to government administration and back?

Yes, with the consent of the candidate.

Does a transfer to the administration have a career-promoting effect?

The flexibility shown and additional experience gained by any temporary transfer (e.g. as a research assistant to the Federal Constitutional Court, the Federal Administrative Court or to the administration) may have such an effect, but not the transfer as such.

Is incompetence a ground for removal of a judge from the bench?

No, only under the aspect of disciplinary reasons. 

Financial security (salaries, remunerations, pensions etc.)

Who decides about judges’ salaries?

The law indicates the salary and the salary increases based on age and the degree of the function.

In what way and under what conditions are the salaries of judges increased? Are they accompanied by annual cost-of-living adjustments?

See above 3.1; there is no cost-of-living adjustment.

Is there a need for executive approval or executive decision to initiate the increase?


Is it possible for the judges to initiate judicial proceedings against the State with regard to their remuneration and which are the competent courts in this case?

Yes, the competent court is the administrative court which would have to submit the law in question to the Federal Constitutional Court.

Is there a uniform salary scheme for all courts, divisions and types?


Career prospects (promotions etc.)

Describe briefly the ways in which the promotions of judges are made. What kind of procedures are to be applied in this context?

At regular intervals, the president of the court assesses judges. The competent minister decides on promotion of a judge, with assistance from a judge appointing commission. The exact procedure varies from state to state. 

Indicate the competent body for the promotions and the criteria applied thereto.

See under 4.1.

Are judges of the administrative courts promoted to the Supreme Administrative Court and under what conditions (seniority etc.)?

Judges of the Supreme Administrative Court are elected by a commission made up of competent ministers from the Länder and an identical number of Bundestag deputies. The election has to take the professional qualifications of the candidates into account.

Can judges accept any government assignment after retirement?


Standards of conduct (professional and service Code, public activities, law-related activities etc.)

Can a judge be involved in law-related activities (arbitration, law practice, writing books)?

Yes. But judges are not allowed to write specific advisory opinions or to give paid legal advice.

Can a judge be involved in business activities?

Yes, but only if his capacity to fulfil his duties as a judge is not impaired and if his neutrality is not endangered.

Is the judge entitled to sideline employment?

Yes, see above Nr. 5.2.

Is there a Code of conduct of judicial behaviour?

No, there is no special written code of conduct.

Is there a Commission on Judicial Conduct or any other body to supervise the behaviour of a judge?

No. The behaviour of a judge is supervised by the president of his court and the minister of justice.

Describe the restrictions - if there are any - on judges’ right to express their views?

Judges must always act in a manner which does not harm the confidence in their independence.

Inspection of judges and disciplinary proceedings

Who is in charge of the inspection of judges and in what way is this inspection conducted?

The Presidents of the Administrative Courts are in charge of the inspection of judges with respect to the discipline and the quality of work. The inspection does not encompass the legal merits of individual decisions.

Are there specific criteria for the evaluation of the performance of judges?

The ministers of justice provide specific guidelines in order to ensure the compatibility of evaluations.

Who holds the legal power to initiate disciplinary proceedings against the judge?

The president of the court in cases of minor breaches, the minister of justice together with the special tribunal for professional conduct (Richterdienstgericht) in cases concerning grave offences.

Who decides the disciplinary tribunal and its composition? Is it permanent or ad hoc?

The permanent composition of the disciplinary tribunal is regulated by the Judiciary Act.

Is there a legal remedy against the decisions of the disciplinary body provided for by law?


Is there a special procedure for investigating and prosecuting a judge?

Yes, the procedure is regulated by the Judiciary Act and the disciplinary code.

II./ Functional and Institutional Independence of administrative jurisdiction:

II.a./ General aspects

Separation of powers and judicial independence

Indicate who is responsible for the central administration of administrative jurisdiction

The minister of justice of each state.

Individual and collective independence of the judiciary

Is it possible for sanctions (of any kind) to be imposed on a judge based upon the content of his/her decision?

Yes, if a decision constitutes a “perversion of justice” (Rechtsbeugung) which is a criminal offence. Rechtsbeugung is only actionable if a judge intentionally breaks the law.

Can a judge face disciplinary charges solely on the basis of the substance of his/her ruling? Is this the case when a judge declines to follow a supreme court’s decision?

Only if his decision constitutes a “Rechtsbeugung” (see above). Judges are bound by the decisions of the Federal Constitutional Court. Under certain circumstances, failure to follow such decisions may be regarded as an actionable “Rechtsbeugung” and result in disciplinary charges.

Judges are also bound by the decision of a superior court which refers a specific case back to their court. If a judge declines to follow such a decision he may also face disciplinary charges for “Rechtsbeugung”.

Do you think that accountability of judges threatens judicial independence?

There is no specific accountability procedure in Germany.

Can a judge be held liable in civil actions for his/her judicial acts (e.g. be sued for damages for actions taken in his/her judicial capacity)?

Only in case of a criminal offence (“perversion of justice” see above Nr.1.3.)

Are judges immune from prosecution in other courts for their judicial acts?

Judges con be prosecuted for “perversion of justice” (Rechtsbeugung), see above Nr. 1.3.

Can criminal charges be brought against a judge for actions on his/her duties?

Yes, see above.

Do judges face sanctions for “decisional conducts”?

Yes, under the aspect of their discipline.

Judicial administration at the Court level (division of work among judges and assignment of cases etc.)

Is the division of work among judges and the assignment of cases to each judge or panel done according to a predetermined rigid plan or is it flexible and may be changed easily?

The assignment is done according to a predetermined rigid plan.

Who is in charge of case assignment?

A general plan of assignments to the panels is decided upon by the presidential committee of each court (Präsidium). Each panel has to draw up a special plan concerning the assignments to individual judges.

Self - administration of justice

Is judicial administration effected through independent judicial self-governance?


Describe briefly how the governing body/committee is elected?

There is no such governing body/committee.

Is there any restriction for the members of the above body to participate in other syndicalistic bodies?


Human, financial and material resources necessary for the performance of judicial functions

Who is responsible for the administrative staff employed in the courts?

The president of each court, supervised by the minister of justice.

Who is competent to make available the necessary funds for the performance of justice?

The minister of justice of each state.

Who has the power to execute and spend the budgetary allocations?

The minister of justice. In some states the president of the court enjoys some discretion in allocating the budget of the court.

II.b./ The relation between administrative jurisdiction and other powers:

Relations with the executive (the influence of the Administration on the judge etc.)

Have there been cases of executive pressure on judges in any form?


Can judges be members of the Government?


Is it allowed for judges to participate in administrative bodies having decisive or consultative competences?

Judges can take part in committees with consultative character only. They may participate in local and regional councils. 

Do the administrative courts have the power to challenge administrative acts of general character (presidential decrees etc.)?


Relations with the legislature (retroactive legislative reversals of cases etc.)

Can the legislature override a decision of a court if they disagree with the way the latter has applied or interpreted a law?

The legislature cannot override a court decision, but can of course issue a law with a different solution for the future. 

Have there been retroactive legislative reversals of court decisions?


Has there been legislation abolishing courts with results of statutory removal of judges and if so, how was it received?


Pending cases?


Can judges be members of the legislature?


Do the administrative courts have the power to challenge laws?

The administrative courts can challenge the constitutionality of laws in submitting the case to the Constitutional Court. 

Interest representation of administrative judges

Are judges organised in associations for furthering their rights and interests?

Yes, in an association called Verwaltungsrichterverein (Association of Administrative Judges)

Are there separate professional representations for administrative judges, or a joint association of judges?

It is a separate professional representation.

What are the specific activities of the aforesaid association? Describe them in brief.

The association protects in general the interests of the administrative judges and promotes the science of administrative law.

Do judges have the right to strike or to hold a demonstration?

A strike is forbidden, no demonstration was held until now. 

II.c./ The relation between administrative jurisdiction and the society:

The administrative judge and the media scrutiny (the press, the judiciary and the courts, criticism of judicial decisions etc.)

Is criticism of judges, judicial decisions and judicial conduct in the press existent, frequent, rare? What are the relevant grounds for this? Could you give major examples?

Judicial decisions of public interest are frequently commented upon in the press. Harsh criticism of decisions by administrative courts is rare, with the exception of decisions allowing parties of the extreme right to hold rallies under the constitutional right to free assembly. Decisions by criminal courts and family courts sometimes face intense scrutiny by the press.

Are trials open to T.V.?


Do you think that press reporting and commenting on judges, courts, judicial decisions and matters pending before the courts poses a challenge to judicial independence?

Not normally. Of course, press comments can be used to pressure judges into making populistic decisions. 

The administrative judge and the public opinion

Do you think that a judge’s engagement in politics or speaking his/her mind in favour of a political party compromises the public confidence in the judiciary?

In order to avoid this obvious danger, judges should be reticent in making their political views public.

Are there institutions that favour strong public opinion in defence of the independence of the judiciary?


Judges and politics

Is it allowed for judges to become member of political parties?


Are there any major restrictions for judges with regard to their political activities? What are the consequences in case of breach?

Judges must always act in a manner which does not harm the confidence in their independence. In case of breach disciplinary actions can be instituted.

Are there any other restrictions for judges as far as their public activity is concerned?

See above.

Have there been cases where political leaders attacked the judges and criticised their decisions?

Political criticism of judicial decisions is not uncommon, especially in regard to decisions by the Federal Constitutional Court, Criminal Courts and Family Courts. But judges will usually not be individually attacked.