Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee has noted the discussion which took place on this case in the Conference Committee in 1989 and the indications given in the Government's report for the period ending 30 June 1989. It has also given further consideration to the comments received in March 1989 from the German Confederation of Trade Unions, expressing concern at the Government's position.

In earlier comments, the Committee has drawn attention to the need to eliminate discrimination on the grounds of political opinion in employment in the public service and to give effect to the recommendations on the matter formulated by the Commission of Inquiry which presented its report in February 1987. The Committee notes that, since then, one significant development has occurred in regard to these recommendations: in July 1988, the Land of Schleswig-Holstein abolished the practice of systematic inquiry from the authority for the protection of the Constitution in regard to all applicants for employment in the public service. However, at the federal level and in several Länder, a number of persons have continued to be adversely affected in employment and occupation (by loss or refusal of employment, demotion, suspension and loss of income). These measures have not been based on any reproach regarding the manner in which those concerned have carried out their professional duties, but on their participation in lawful political activities, such as standing as candidates at elections or serving as elected members of town councils.

The Committee notes that in its report, the Government refers to its statement to the Conference Committee in 1989, where it reaffirmed its disagreement with the conclusions reached by the Commission of Inquiry. The Committee observes that under article 32 of the Constitution, the only authority capable of affirming, varying or reversing the findings or recommendations of a Commission of Inquiry is the International Court of Justice, and that therefore, a government which chooses not to avail itself of the possibility of referring the matter to the International Court of Justice ought to take account of the conclusions and act upon the recommendations of the Commission of Inquiry. In its report, the Government furthermore expresses the wish to defer consideration of the problem of the duty of faithfulness to the Constitution in the public service in the light of recent political developments in Eastern Europe and their possible repercussions on the Federal Republic.

The Committee takes due note of these indications. It hopes nevertheless that the necessary action will soon be taken to give effect to the Convention throughout the public service, and that the Government will be in a position in the near future to indicate progress in this regard.

The Committee is dealing with a number of specific aspects in a request addressed directly to the Government.