Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

A Government representative stated that at the last International Labour Conference, the Government had expressed the hope that an indepth dialogue would take place on this case before the present Committee. This Committee had indicated that it was necessary to seek solutions with all the parties concerned. In fact, the Commission of Inquiry of the ILO had indicated in the lest chapter of its report that "extensive consultations with various authorities and other interested parties will be required to determine the measures to be taken and that the time within which the necessary decisions can be taken will also depend on the nature of those measures." Following on these requests from the supervisory bodies and notably on the recommendations of the Commission of Inquiry, the Government had made contact with the Länder, with the social partners and with the International Labour Office. Consultations with the leading associations of employers, of public servants, of employees and of workers had taken place at the expert level in October 1988 and were continued at a higher level in May 1989. The Länder were informed by the Government at the beginning of November 1988 and in May 1989 about the situation and about the tenor of discussions with the bodies of the ILO; in particular about the recommendations of the Commission of Inquiry. There had also been a discussion with the International Labour Standards Branch of the ILO at the end of 1988. All these consultations, deliberations and discussions showed that the Commission of Inquiry appeared to have judged the situation correctly when it stated in its report that consultations would be wide-ranging and that a fixed time-table was not possible for the action to be undertaken by the Government in this matter.

The efforts made by the Government to clarify the matter, notably the intensive study of the report of the Commission of Inquiry, had highlighted a number of questions relating to the recommendations of the Commission of Inquiry. As the Commission of Inquiry had itself noted, the question was extremely complex and did not lend itself to easy solution. Evidence of the complexity of the matter also appeared in the actual report of the Commission of Inquiry, since the latter was not unanimously adopted, but only by a majority of 2 to 1, which was a first in the annals of the ILO. The member of the Commission of Inquiry who opposed the majority vote had done so on a central point, not on a secondary point, a fact which had remained significant since the report of the Committee of Experts based itself expressly upon the report of the Commission of Inquiry and required the implementation of the recommendations of the latter.

The Government had shared, and continued to share, the minority opinion and considered that in a supervisory process based upon dialogue all views had to be given their due value and should be taken into consideration; in fact, this had been shown in the present case.

In its recommendations, the Commission of Inquiry had stated that " (The principle of proportionality) implies... that public servants should be subject to no greater limitations in the enjoyment of rights and freedoms accorded to citizens in general than can be shown to be necessary to ensure the functioning of the institutions of the State and of public services." The Government considered that a series of questions and observations followed from this affirmation: the principle of proportionality was part of the rule of law and had a constitutional rank in his country; in a general way, the public servant enjoyed the same rights and freedoms as other citizens, the difference being that it was his duty to support actively fundamental human rights as well as the structures which guarantee them, for example, the multi-party system, the independence of the courts and free elections.

This duty was based directly on the Constitution and was part of the concept of militant, self-defending, democracy, the principles of which are upheld by the whole population, including the social partners. Although the elevated rank accorded to such a duty in relation to basic rights and to human rights was perhaps not considered necessary in other countries, in view of historical events in his country it had been indeed appropriate to lay down in the Constitution the duty of public servants actively to uphold at all times the free democratic basic order. Consequently, the unavoidable question arose of the attitude the State should adopt towards a public servant who, instead of protecting human rights and freedoms, was actively pursuing their elimination. In such a case was there a conflict with the right to freedom of political expression? The higher courts as well as the Federal Constitutional Court had denied that this was the case and, for its part, the European Court of Human Rights had indicated that the duty of the public servant to protect human rights and freedoms did not restrict his or her own right to freedom of expression. In that instance, the Court had ruled not only on a question of competence but also on the substance itself.

The Commission of Inquiry had stated that the actual attitude and the functions of each public servant had to be taken into consideration.

As to the first point, the implicit assumption that in the Federal Republic there might be judgements not taking the individual case into account questioned the foundation of the rule of law (Rechtsstaatlichkeit in force. The requirement of individual examination of cases was an important element in the rule of law which also had a constitutional rank and the decision of the court which had not taken the individual case into account would not be confirmed by higher courts and, in particular, by the Federal Constitutional Court. As regards the whole set of problems in this context, the Government requested the Committee of Experts to examine them once again in detail.

As to the differentiation in functions, the Federal Constitutional Court had stated in 1975 that the duty of the public servant to be faithful to the free democratic basic order applied to all public servants, regardless of function. This decision was binding upon the Government, which could not therefore differentiate according to function on this question of faithfulness, and which would come into conflict with the highest court should it decide to submit a Bill along these lines to Parliament. The opinion of the Commission of Inquiry, according to which the duty of faithfulness could be regulated by a federal law was therefore unjustified. On this essential point, further in-depth dialogue should also take place with all interested parties.

The Commission of Inquiry had stressed that practice in the various Lander varied as far as the verification of faithfulness was concerned: for this reason, it had mentioned the procedure adopted in certain Länder in which in its opinion the faithfulness of applicants to the public service was assumed and activities within legal political parties were not considered incompatible with faithfulness to the Constitution. The Commission of Inquiry seemed to consider this procedure was a possible way of bringing practice into conformity with the Convention. In this respect, it should be noted that the practice of systematic verification of faithfulness had been abandoned in certain Länder and had no longer been applied at the federal level, including in the postal and railway services since 1979. and that the Land of Schleswig-Holstein had recently abandoned this practice. Nevertheless, the Federal Constitutional Court had noted that systematic verification was an adequate way of establishing an applicant's faithfulness to the Constitution and this practice was therefore still in use in certain Länder. The supervisory bodies seemed to assume that the federal Government should take measures to eliminate the practice of systematic verification in these Länder as well; however, owing to the federal structure, the Government did not have jurisdiction over this subject. It was for this reason that, in 1972, the Government and the Länder had adopted a joint declaration and not a federal Act.

In its recommendations, the Commission of Inquiry had also indicated that activities in favour of legal political parties should not be considered as being incompatible with faithfulness to the Constitution The higher courts including the Federal Constitutional Court, have consistently considered that an official breached the duty of faithfulness if he or she engaged in activities on behalf of a political party which pursued aims hostile to basic human rights incorporated in the Constitution, even though the party had not been formally prohibited by the Federal Constitutional Court. In relation to other citizens, a public servant had a greater duty of faithfulness to the fundamental principles of the Constitution. The concept of "legal" used by the Commission of Inquiry called for an interpretation; in fact, the prohibition of a party by the Federal Constitutional Court presupposed the filing of a claim in the formal sense by the Federal Government, which could have good reasons for not lodging such a claim; it might appear wise not to force extremist political parties into clandestine activities. It would be desirable if the Committee of Experts could address these matters in its next report. Of course, the decisions of the Federal Constitutional Court and the decisions of the European Court of Human Rights were not binding on the supervisory bodies of the ILO but that Court did deal essentially with fundamental rights - the same rights as set forth in the present Convention; the decisions of these Courts, which were competent in matters involving human rights and fundamental freedoms, should at least amount to the basis for a dialogue at all levels of the supervisory machinery of the ILO.

In conclusion, the Government representative stated that the discussion on the analysis of the report of the Commission of Inquiry should continue at all levels and the recommendations should continue to be examined in relation to their applicability. The Government was willing to continue the dialogue on the political level with the principal representatives of trade unions, associations of officials and employers, in that way also following up on a proposal made by the German Confederation of Trade Unions. The Government would ask the Lander to participate in their efforts and would assume that trade union organisations and employers' organisations and employers' organisations would make contact with the Lander authorities, which would lead to a better understanding of the situation.

The Government requested the supervisory bodies to examine the questions it had raised, and which the Government would set forth more specifically in its next report. In that report, the Government would indicate in detail all results which had been forthcoming. Advantage should be taken of the opportunity to continue the dialogue.

The Worker member of the Federal Republic of Germany stated that the Committee of Experts had justly and objectively outlined the development of the situation since the discussions which had taken place in the present Committee in 1988. After an indepth discussion, the present Committee had expressed in its conclusions the hope that the federal Government would examine the situation again in consultation with the workers' organisations and the employers' organisations and would adopt appropriate measures to overcome the existing difficulties, taking due account of the recommendations the Commission of Inquiry formulated in 1987, as well as of the discussion within the Conference Committee. The present Committee had regretted that the Government did not agree with the conclusions of the Commission of Inquiry, whilst also pointing out that this did not detract from the validity of its conclusions. Since then, on two occasions discussions had taken place in which the German Confederation of Trade Unions had participated; however, regrettably, the Government had not changed its position of principle, which was not to recognise the conclusions of the Commission of Inquiry. The German Confederation of Trade Unions remained ready at all times to take part in discussions in order to overcome the existing difficulties and to put national practice into conformity with the provisions of present Convention. However, it could not and would not discharge the Government of its responsibility, which was to observe the recommendations of the Commission of Inquiry. The present Committee was not the appropriate place to discuss, once again, the situation in practice and the situation in law. If the. Government was looking for confirmation of its legal point of view, it should address itself to the International Court of Justice, which was the only competent body to change or to lift the recommendations of the Commission of Inquiry. The Government considered it was prevented from changing its practice by national laws and court decisions. However, the national laws and decisions could not discharge the Government of its obligation to give effect to the provisions of the present Convention. The Government had to pursue a national policy which guaranteed respect of the Convention and it had to abstain from anything which might favour, or even make possible, non-respect of the Convention. The practice followed by the federal Government, by the federal postal and railway services, as well as by certain Lander (which had been criticised by the ILO supervisory bodies) was not the only possible practice, since it was on the basis of existing law that other Länder had adopted a practice in recruitment and verification matters which was in accordance with the Convention; these Länder would henceforth include Schleswig-Holstein, following the electoral victory of the opposition party. The change in practice following from changes in parliamentary majorities in certain Länder demonstrated how simple it would be in the Federal Republic of Germany to put current practice which, according to the unanimous declarations of the supervisory bodies did not comply with the Convention, very rapidly into conformity with the Convention. In fact, if the legal constraints invoked by the Government to maintain its practice actually existed, they would have to be valid in these Länder as well. The supervisory bodies of the ILO could not proceed to interpret the decisions of German courts; but if these decisions were to become an obstacle to the application of the Convention, this would in no way modify the compulsory character of the said Convention. In reality, it might be that current national court practice did not prohibit the Government from pursuing its own current practice; but in no way did case law require the Government's current practice. The Government had to change its practice and it had to state here that it was ready to do so. If not, it would have to submit the matter to the International Court of Justice.

If, however, the Government were ready to put the process of verification of applicants to the public service into conformity with the previsions of the present Convention, the German Confederation of Trade Unions had already made a number of specific proposals within the framework of the national discussions which had taken place. These proposals would require: that the systematic verification with the Office for the Protection of the Constitution be abandoned at the federal level and in all the Lander. thus following the procedure adopted by certain Lander; the establishment by a federal law of a procedure which would simultaneously take account of the legitimate interests of state security and the prohibition on discrimination contained in article 3, paragraph 3, of the Constitution, as well as the provisions of the present Convention; such a standard would have to emphasise the need for strictly individual examination as well as the obligation to take account of the principle of proportionality of means to be put into effect; and that an end be put to excessive officialdom in the public service, so that more applicants for jobs in the public service can be recruited as employees covered by labour law and not as officials tied by the duty of faithfulness. The proposals of the German Confederation of Trade Unions showed in a constructive manner that the Federal Government could make better use than it had up to now of its wide discretionary powers within the national legal framework. The same applied to those Lander which still gave cause for criticism in this respect. Although the Federal Government could not give orders to the Länder, it did, however, represent the State before the International Labour Organisation and was responsible for the application of standards in the whole country.

The representative of the World Federation of Trade Unions (WFTU) referred to the continued non-application of the present Convention in the Federal Republic of Germany, as regards workers in the public service, and stated that the practice of job bans (Berufsverbote) had been going on for 70 years. It indiscriminately affected public sector workers in certain federal States, whether they were applicants for a public post or were already in post. It was not just a case of employment in the public service; which is generally recognised as coming within the discretion of the Government because they concern the highest levels of the political and administrative machinery which touch upon the functioning of the State, rather it affected all public officials. regardless of their functions. These practices were occurring in a great country which called itself free and democratic and respectful of international law, whereas in fact they violated Convention No. 111 on a systematic and massive scale as regards recruitment, prolongation of service and termination of public officials and applicants to the public service. In conformity with article 26, paragraph 4, of the Constitution of the ILO, the Governing Body had set up a Commission of Inquiry which had presented a report in 1987. The Government had not accepted its conclusions and whilst refusing to conform with the recommendations of the Commission of Inquiry, it had not wished to take the case before the International Court of Justice and still refused to do so. The speaker recalled the representations made in 1979 and 1984 by the World Federation of Trade Unions by virtue of article 24 of the Constitution. Although the people affected by this practice might consider the lapse of time since the beginning of the procedures rather long, they had to place their confidence in the supervisory machinery, and had to respect it. The establishment of a Commission of Inquiry was a last resort in cases of continued violation, not a normal, every-day means in the supervision of the application of standards. All other procedures are suspended, including discussion in the present Committee. As regards recourse to the International Court of Justice or recourse, previously, to the Permanent Court of International Justice, few governments had employed this means of recourse. Governments were not pressing to seize the International Court of Justice on the interpretation of several thousands of ratified Conventions, contrary to what had been suggested by certain employers. The supervisory machinery set up by the ILO had proved its effectiveness, its objectivity, its impartiality and its independence, as well as its competence. The application of standards should be ensured through recourse to the supervisory machinery, dialogue, and technical assistance, if necessary accompanied by the support and advice of qualified experts whom the ILO made available to its constituents. This pre-supposed good faith and good will on the part of governments.

The Government of the Federal Republic of Germany did not abide by the recommendations of the Commission of Inquiry, indeed it persisted in its refusal to follow them. Since the recommendations had been adopted, new cases of job bans had been cited. The speaker said he held an open file of about 40 cases recently opened against public service workers. which he would hand over to the ILO. It was a cause for concern that these practices continued in spite of the recommendations of the Commission of Inquiry. The Government was thus challenging the ILO, its Governing Body and the supervisory bodies, as well as the trade union movement whose opinions, as expressed in the course of the consultative process at the national level, it refused to take into consideration. Trust had to be placed in the action of the German trade unions and of all democratic people in the country, to ensure that the practice of job bans was eliminated, as this was political discrimination, which was contrary to the international standards relating to human rights. Certain Länder had already started on this road and so practice was not uniform; incidentally, this had created discriminatory situations between the public service workers from one Land to another.

The speaker was of the opinion that, according to the current Federal Government, the present Convention was incompatible with the Basic Law. However, the latter accepted as a standard of domestic law the principles of international law, one of which resided in the compulsory nature of the Conventions freely ratified by States, and their application in good faith. No international court had ever admitted that States might hide behind own internal standards, whether constitutional or legislative, and behind court decisions so as to avoid fulfilling their obligations under the Conventions. No doubt the Government did not have absolute confidence in its own interpretation, for in that case it would not have declined the opportunity to have it confirmed by the International Court of Justice. The speaker contested the Government's figures on the number of cases of disciplinary action followed by dismissal which had actually taken place and stated that a filing system concerning hundreds of thousands of public officials and applicants to the public service had been set up, and included information identifiable by name on the opinions and political and philosophical allegiances of these persons, as well as on their trade unions and civic activities. Most democratic countries had prohibited, or very severely regulated, these files and investigations so that they could not be a breach of the rights and freedoms of all citizens. The mechanisms investigating and policing opinion were exercising a generalised pressure on the freedom of opinion and expression of a considerable part of the country's citizens. He referred to the European Convention on Human Rights and considered that, whilst that Convention had certainly wished to affirm certain basic freedoms, it had certainly not wished to prohibit the exercise of the rights and freedoms which it did not expressly mention. As far as the supervisory bodies of the ILO were concerned, it was a question of ensuring the application of Convention No. 111. In conclusion, he emphasised the serious nature of the case not only in relation to human rights which are specified in the present Convention on questions of employment and occupation, but also in relation to equally important public freedoms such as the freedom of opinion and the freedom of expression recognised in the covenants and conventions relating to human rights. The definition of a State governed by rule of law was not that it respected its own laws, but that it respected and put into practice the exercise of public freedoms for all, without discrimination. Freedom was indivisible. Attacks on the freedom of some persons or on certain freedoms were limitations on the freedom of all and an attack on all freedoms. This Committee should point this out in its conclusions, as well as the challenge presented to it and to the Commission of Inquiry and the Governing Body of the ILO. The latter should, in accordance with article 33 of the Constitution, examine as quickly as possible what should be done in this case. But the present Committee should not merely request the Government to provide a report next year; it should also request it to apply the present Convention and to stop its current practice. Conclusions appropriate to the extreme gravity of the continued violation of the present Convention should encourage the Government to implement the Convention fully in law and in practice, as quickly as possible, and taking fully into account the views of the German trade unions in this respect.

The representative of the International Federation of Free Teachers' Unions (SPIE-CISL) referred to the frequently very difficult personal situation in which persons found themselves when affected by measures taken in application of the duty of faithfulness and who could not be reproached for any actual default in their obligations. Some of these people had not been able to complete their training, others found themselves refused access to employment after years of training, hence the expression "job ban", and still others had been dismissed after long years of irreproachable service, sometimes even more than 20 years, in teaching, in the postal service and in other parts of the public service. Dismissal procedures had continued since the adoption in 1987 of the report of the Commission of Inquiry, which had described the situation exactly and which had drawn attention to individual cases. In certain cases, the dismissed persons had had the benefit of their work-linked housing withdrawn or had had to pay back large amounts of money when their dismissal had been preceded by a period of suspended service: in the case of one school-teacher, the authorities had claimed the repayment of DM 150,000. This showed the speed with which the person concerned could see his or her material means of existence also become involved, after being deprived of his or her occupational life. And these measures had been taken since the previous International Labour Conference. The non-respect of international labour standards and of the supervisory system of the ILO was a cause for concern. The present Convention was one of the standards concerned with fundamental human rights. After an in-depth study of the facts and a full legal discussion, the Commission of Inquiry had noted that the Convention was not respected. This procedure was the most exhaustive of all in the supervisory machinery; it had not often been used in the 70 years of the Organisation's life and this was the first time that such a Commission had been set up as a matter of course by the Governing Body. The present Committee expected governments to put an end to the divergence noted by the Committee of Experts in connection with a ratified Convention; this carried even more weight in the case of the report by a Commission of Inquiry, set up by virtue of the Constitution of the ILO. If the Government continued to refuse to accept the recommendations of the Commission of Inquiry, a situation which was not acceptable, then it would have to appeal to the International Court of Justice. In this connection, it was worth recalling that in the past, in another context, the Government had already envisaged, before the present Committee, reference to the International Court of Justice. If it did not wish to proceed along that path, then it would have to be content with the recommendations of the Commission of Inquiry.

The Worker member of Finland, speaking on behalf of the Worker members of Denmark, Finland, Norway and Sweden, pointed out interesting similarities between this case and the case involving the present Convention in relation to the Islamic Republic of Iran. Both that Government and the Government of the Federal Republic of Germany were presuming that mere membership in certain political parties or organisations implied doubts about faithfulness to the constitution of the country, or that such membership was prejudicial to the security of the State, so as to justify exclusion from the public sector. The Scandinavian workers were glad to learn that the new government of Schleswig-Holstein had abandoned the so-called "Systematic inquiry" (Regelanfrage) practice; now, in that Land, loyalty to the Constitution was presumed unless there was specific evidence of an act contrary to that obligation. They found it strange that no change of attitude or practice had taken place with respect to the Federal Government or in the Länder of Baden-Württemberg, Bavaria, Lower Saxony and Rhineland-Palatinate. Although in the general discussion the Government had expressed its support for the supervisory machinery, finding it to be independent, neutral and objective, the Federal Republic of Germany was in practice calling the judgment of the supervisory bodies into question when it came to their own country's failure to apply a Convention. Yet all the supervisory bodies which had examined the case - the Committee of Experts, the present Committee and the Commission of Inquiry - had consistently reached the same conclusions. By opposing the conclusions of the Commission of Inquiry and the other bodies, the Government was behaving in flagrant contradiction to the ILO Constitution and the fundamental rules on which the supervisory machinery was based. The Government should either request an interpretation from the International Court of Justice under article 29 of the ILO Constitution or it should accept and implement those conclusions. No other option remained for an honest-minded member State of the ILO. Yet the Federal Republic of Germany had failed in both respects. Given the negative consequences of the Government's attitude for the legal rights of civil servants and the entire ILO supervisory machinery, the Scandinavian workers proposed that the case be mentioned in a special paragraph of the present Committee's report. The Government had kindly expressed its willingness to continue a dialogue with the trade unions in the Federal Republic of Germany and with the ILO supervisory bodies. However, this question had been discussed in the present Committee since 1981. After so many years of dialogue, it could be said that hope, meaning mere dialogue, was a good breakfast, but a bad supper. The Scandinavian workers further proposed that the present Committee should, in the conclusions on this case, invite the Governing Body to examine, in accordance with article 33 of the ILO Constitution, what further measures might be taken to secure the observance of the Convention, and to recommend to the 1990 Conference "such action it may deem wise and expedient". They also referred to article 27 of the ILO Constitution and article IX of the agreement between the United Nations and the ILO, which concerned relations with the International Court of Justice. According to article IX, the Conference Committee or the Governing Body, acting in pursuance of an authorisation by the Conference, could request the International Court of Justice to give a legal advisory opinion concerning Convention No. 111. In conclusion, they hoped that next year this case would appear as an example of the successful operation of the supervisory process.

A Worker member of Spain stated that he fully shared the view expressed by the Worker member of the Federal Republic of Germany. He wondered whether, in a democratic State like the Federal Republic of Germany in which human rights are recognised as promulgated in the international covenants of the United Nations, it was legitimate to invoke the defence of human rights in order to practise discrimination and exclusion from employment for security reasons. He considered just as freedom of association was protected, political freedom and its expression should also be protected; that is, protection was required not only of affiliation to a political party or of the expression of a political opinion, but also of protection in the face of any harm, repression or prejudice. He referred to the Spanish Constitution and to the prohibition on discrimination it contained, a system that had been adopted when democracy was established. In his opinion, the scope of present Convention had to be established and in order to do this it was important for the Government to submit the case to the International Court of Justice. However, in so far as it did not do so the solution to the problem could be found at the level of administrative practice, leaving aside the criterion of political activity or opinion in the choice and selection of candidates or deciding security of tenure of public servants. Bearing in mind, as well, the current crisis in political ideas and international developments tending towards the overcoming of ideological and political confrontation, the restrictions on democracy had to disappear, because the cause of peace also required it.

The Worker member of the United Kingdom considered that this case was typical of a number of cases that had come before the present Committee; he wondered how a breakthrough could be achieved. Earlier, many governments had argued that the present Committee resolved problems through dialogue and consensus. Workers who knew about this case tried to treat it through dialogue and consensus, but we were faced with a situation in which the Committee of Experts and the present Committee, as well as the Commission of Inquiry, had asked in vain for certain changes to be made. Workers were told that before a case could require special treatment, it had to have been considered for a long time and it had to be a very serious case, how many workers had to die before a case became serious? Let all those countries which had stated, in explaining their vote in the case involving the United Kingdom, that they believed in dialogue and consensus come forward now to assist in this case when dialogue and consensus seemed to have failed.

The Workers' members declared that this question of discrimination in employment and occupation because of political opinion was very important, as it: (1) concerned a democratic industrialised State; (2) the application of Convention No. 111, (a fundamental Convention on human rights matters); (3) the time that has elapsed since the question began to be examined; and (4) the number of people concerned, or who might become concerned, in view of the large number of public servants. The divergences between the Convention and its application were clear and had been noted by the present Committee, the Committee of Experts and, in particular, by the Commission of Inquiry; for the moment, the Convention was still not respected. Progress had been made in one Land and it was to be hoped that this progress would be followed by other examples of progress, notably at the federal level. Consultations and dialogue were taking place with the social partners and the various Länder authorities. These consultations, just like the decisions which may have been adopted by the Federal Constitutional Court, did not detract from the fact that the Convention was not respected, that changes should take place and the Government's obligations remained the same. The conclusions and recommendations of the Commission of Inquiry had been adopted at the beginning of 1987, that is, two years ago already. It would be dangerous to postpone the necessary changes indefinitely, just as it would be inappropriate to follow the request of the Government to the effect that the Committee of Experts reexamine the whole question. The conclusions and recommendations of the Commission of Inquiry were clear. If the necessary changes could not be brought about by other means, the appropriate legislative measures would have to be adopted, and the Government would have to indicate to the present Committee which measures it intended to adopt. Should it refuse to follow that path, it was up to the Government to take the affair before the International Court of Justice. For its part, at a certain moment the present Committee would have to invite the Governing Body to examine which other measures could be taken to guarantee respect of the Convention. A request might even be made to the Director-General to submit a full analysis of the possible means of action to the Governing Body. In conclusion, the Workers' members considered that one could examine, discuss and consult, but in the end the legislation had to be corrected and amended.

The Employers' members stated that the present case concerned the important question of discrimination based on political opinion and it seemed to them that there was a hope that this question might be resolved, with time. As to the legal position of the Government, they referred to their comments made on the occasion of the discussion at the Conference the previous year, which is reflected in the Record of Proceedings of the International Labour Conference, 1988, No. 28, page 69. The question of discrimination based on political opinion in this case is inextricably linked to questions of national security and the protection of human rights. Furthermore, it was complicated by the fact that the Commission of Inquiry was divided and by the decisions of the European Court on Human Rights. The problem arose because of the Federal Constitution and it was not certain whether the solution being sought could be a legislative one; the Employers' members did not agree in this respect with the Workers' members. The Worker member of the Federal Republic of Germany had focused on the practice in his country and it was in this area that a solution to this case also could be found. The case was complicated by the fact that it was a question of a federal government and the authorities of the Lander and of their respective competence. Even if the case itself had been before the present Committee for a certain time, the report of the Commission of Inquiry was quite recent and the Government had paid much closer attention to the question since then. Progress had been made since the previous year: at least one Land had modified its practice and even if this was the result of political changes in that Land, it was a step in the right direction; the Government had engaged in tripartite dialogue which takes a certain time, particularly because the question being examined concerned the constitution of the federal State; consultations had begun or would be starting with different Länder. In conclusion, the Employers' members hoped that these various consultations would contribute to a solution to these problems; they also referred to the change in international relations which was taking place in the region and which in the longer term could contribute to the solution of the case. As regards the suggestion by the Workers' members to invite the Governing Body and the Director-General to formulate proposals to resolve the case, they considered it was premature to go that far, since the Government was trying to resolve the problem internally.

The Government member of France stated that this case was probably the most complex that the present Committee had ever had to examine, with political, legal, human and historical implications and with a particular significance as regards the duty of faithfulness towards the constitutional order and democratic institutions. The Government had indicated its willingness to seek a solution, to continue dialogue at the Länder level and also with the social partners, but all this would take time. The obstacles and difficulties referred to came very much to the fore, notably the political and human impossibility of changing the Constitution and the role of the Federal Constitutional Court; there were difficulties in the application in domestic law of the provisions of Convention No. 11 and of the conclusions of the Commission of Inquiry; there were also difficulties associated with the autonomy of the Länder, which had different political majorities and over which the Federal Government had little power. One should not reach hasty or trenchant opinions on this very sensitive subject and it was appropriate to encourage the Government to continue seeking practical solutions.

The Government representative of the Federal Republic of Germany stated that several speakers had referred to the measures to be adopted by the Government and he considered it was difficult to have a discussion and to call it a dialogue when arguments that were already well known were simply evoked once more. Whilst he understood that the question of measures to be adopted by the Government should be evoked, one should bear in mind the federal structure of the State and consider what could be done at the Federal level and at the Länder level. As regards the competence of the federal authorities, including the postal and railway services, three cases had already started since the beginning of the process of inquiry, one which concerned a member of the German Communist Party and two which concerned extreme right-wing public officials (the case concerning the member of the German Communist Party has been settled in that way that the civil servant concerned continues to be employed); in view of the country's history it would be interesting to know the views of the members of the present Committee as to the reactions which the Government should have in this respect, when faced with Neo- Nazi extremists who actively fight the free democratic basic order.

As regards the time since when the dialogue can refer to the jurisprudence of the supervisory bodies in the opinion of the Government representative, none of the supervisory bodies had formed a definitive opinion until the report of the Commission of Inquiry of 1987, the conclusions and recommendations of which had been adopted by two members, as the third member had expressed a dissenting opinion. This also should encourage reflection and furnish an opportunity for continued dialogue.

The speaker referred to the freedom of expression and to the protection of the opposition which was guaranteed by the Constitution of his country and wondered how the jurisprudence of the Committee of Experts could be interpreted if an opposition was hostile to human rights and sought to establish a dictatorship, even through peaceful and parliamentary means. In particular, he referred to the jurisprudence of the Committee of Experts according to which the protection of the Convention cannot be granted if unconstitutional principles which are in contradiction to basic human rights are advocated. He wondered what was the significance of its jurisprudence for the Federal Republic of Germany. The Government respected the supervisory bodies and took part in procedures which aimed at dialogue. Regardless of other legal questions which could be raised in this context the Government did not consider it appropriate to appeal to the International Court of Justice, as it considered that the possibilities of dialogue had not yet been exhausted. Furthermore, the Federal Constitutional Court which is competent to decide on human rights had not had the opportunity of formulating a definitive opinion on the question since 1975 since the right to appeal to that court has not been used by those concerned. For its part, the European Court on Human Rights had decided that the incriminated practice did not amount to a restriction on liberty of opinion and this ruling should also be included in the dialogue. Human rights were indivisible, the Committee of Experts had not taken this ruling appropriately into account, whereas the questions on which it touches were extremely pertinent. The Committee of Experts should have the to opportunity to examine the whole question again, including the decisions of the European Court of Human Rights and the Government was ready to take part in a constructive manner in such a dialogue.

The Worker member of the Federal Republic of Germany referred to the statement of the Government representative and said that the Constitution, the law regarding the public service and the law on political parties provided the necessary basis on which to solve the question of the Neo-fascists; he also said that there should be no change in the perspective on the problem, as the practice under consideration was essentially aimed at the "left" and not at the "right". It was not possible, due to lack of time, to discuss the problems of the Constitution, of the historical past or of the European Court on Human Rights. What was clear was that the Government did not accept the report of the Commission of Inquiry and that it split hairs by talking of minority votes. This was all way out of date: the position of the Commission of Inquiry had been followed by the Committee of Experts and its comments in 1988 and 1989, and the present Committee had adopted conclusions going in the same direction in 1988; the Government was faced with the position of the supervisory bodies of the ILO and it should not discuss minority votes. The second intervention by the Government representative had showed quite clearly that the Government was persisting in its point of view and refusing to modify its practice, which had been criticised by the supervisory bodies; this did not render dialogue any easier.

The Committee noted the information and explanations provided by the Government representative as well as the debate which had taken place. The Committee noted that the Government wished to continue to support the supervisory procedures of the ILO and to promote dialogue with the supervisory bodies. The Committee noted, however, that the Government maintained its position according to which law and practice with respect to the duty of faithfulness were in compliance with the Convention. The Committee recalled that under the ILO Constitution disputes relating to interpretation could be referred to the International Court of Justice. The Committee shared the opinion of the Committee of Experts that the position of the Government did not affect the validity of the conclusions of the Commission of Inquiry. The Committee, noting the importance and the complexity of the problem in both national and international law, took due note of the assurances given by the Government on the possibility of maintaining a constructive dialogue at all levels. It took due note of the measures already adopted and the steps initiated, as well as of developments in the practice of certain Länder. The Committee subscribed to the hope expressed by the Committee of Experts that, furthermore, measures would be taken by the Government to ensure full compliance with Convention No. 111 in regard to the matters examined by the Commission of Inquiry, taking into account the dialogue pursued within the supervisory bodies.

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

A Government representative welcomed the chance to answer on behalf of his Government the questions raised in regard to Convention No. 111, and to once again discuss this important issue which concerned human rights and which was a central concern in the Constitution in his country. The theme of human rights had received special attention this year as it was the 40th anniversary of important human rights instruments and was the subject of the Director-General's report. In the case of individual human rights questions it was necessary to take account of its relationship to other human rights instruments. The discussion with the Committee offered the occasion to analyse again, through dialogue, the multiple aspects of this complex questions. His Government had always made it clear that it considered that co-operation and dialogue with the supervisory bodies on standards were the decisive elements of the entire supervisory procedure, and its participation in this dialogue was not merely a formality. The Government respected the high political and moral level of the considerations and evaluations of the supervisory bodies, including those of the Commissions of Inquiry. The purpose and aim of such a dialogue was justified by the fact that by continuing and enlarging exchange of views all arguments would be taken duly into consideration.

The Government was ready to participate in the necessary comprehensive dialogue but wondered whether the base required for such a full discussion existed already this year, mainly for the following three reasons: in the first place the Committee of Experts' report deals principally with the Governments' report which covers at the request of the Committee of Experts, the period ending 30 June 1987. However, it was only on 23 May 1987 that the Governing Body took note of the report of the Commission of Inquiry under article 26 of the ILO Constitution. The Government was therefore only given the opportunity to report on a period of five weeks. Secondly, the Commission of Inquiry did not fix a deadline according to article 28 of the Constitution and thus decided not to impose a deadline on the Government for the implementation of measures. It recommended, inter alia, that the Government supply detailed information in its annual reports on all the developments which had taken place, and the Government would fulfill its obligations to report. Thirdly the questions before the Committee were not only vitally important to his country, but were also of an extremely complex nature, which could be seen in the different evaluations made in the framework of the supervisory machinery. A first representation in 1979 did not lead to a negative evaluation of the legal situation. After a second representation, in 1985, the Governing Body, within the scope of its own competence, also was unable to establish that his country had infringed the Convention, but due to the complexity of the problem, it referred the question to a Commission of Inquiry. This Inquiry, carried out by three eminent international experts, failed to yield an unanimous result. Two of the experts considered that the practice at the federal level and in certain Länder was not in complete conformity with the Convention. The third expert stated that he was unable to accept these observations, conclusions and recommendations, as he felt that the Commission should have examined whether the measures adopted in the Federal Republic of Germany had been taken in order to protect basic human rights. His objection therefore fundamentally brought into question the basic findings of the other members of the Commission. In view of these fundamental contradictions it was not possible to conclude the dialogue by formally referring to the fact that there was majority opinion. The fundamental issues in question should also be discussed extensively in this Committee.

The Government hoped that a dialogue, based on detailed annual reports as the Commission of Inquiry had recommended, could be pursued in the future. Future reports would cover a longer period and offer the opportunity to discuss again all of the issues in order that this Committee would be fully conversant with the arguments of the Government and the manner in which the Government appreciates and respects the arguments of the supervisory bodies.

The Workers' member of the Federal Republic of Germany recalled that the Government had already had to reply to the present Committee on the application of the Convention; in 1981, 1982 and 1983, national practice in the application of provisions to examine observance of the duty of faithfulness to the free democratic basic order had been the subject of dialogue. The discussions on this questions were suspended while the issue was being examined under the representation procedure according to article 24 of the Constitution, and subsequently by a Commission of Inquiry set up under article 26 of the Constitution. The results of this in-depth inquiry were presented in February 1987. The Commission concluded that in several respects, measures taken to implement the duty of faithfulness to a free democratic basic order in regard to employment in the public services were not within limits authorised in Article 1, paragraph 2, of the Convention, which referred to inherent requirements of a particular job. Furthermore, the report noted that in all the cases examined there had been discrimination on the basis of political opinion and none involved anti-constitutional acts, let alone activities prejudicial to the security of the State.

The German Trade Union Confederation (DGB), following the publication of the report, asked the Federal Government as well as the Länder governments to bring their administrative practices into conformity with the provisions of the Convention, and it called on policy makers to amend national legislation, where necessary, if its application did not comply with the requirements noted by the Commission of Inquiry. At the same time, it emphasised that mere membership of a political party alleged to pursue aims hostile to the Constitution did not warrant general doubts about faithfulness to the Constitution. Likewise mere activities or candidacy for such a party could not, on its own, be considered as a violation of duties which it would justify exclusion from the public service. In order that disciplinary measures could be taken, it must be a necessary prerequisible to prove that the person concerned had engaged in activities which were concretely directed against a free democratic basic order. Political activity by public service employees should not be protected if violent or unconstitutional methods were used or advocated. This comment was communicated to the Federal Government in May 1987. In regard to the possibility of having a discussion at the present time, he believed that the report of the Commission of Inquiry, on which the report of the Committee of Experts had been based, provided an adequate basis for the discussion as it was the most complete and thorough documentation on these difficult problems. It had to be acknowledge that the Government had always supported the work of the Commission of Inquiry and had not only accepted the procedure but had also arranged contacts with all concerned. The DGB as well as its member unions of teachers and of persons employed in the postal service had had an opportunity to express their point of views. The DGB did not doubt that the Government had a legitimate interest to protect itself against activities turned directly against state security; these activities fell anyhow within the exclusion provided for in Article 4 of the Convention. However, the issue of security had never been concerned in the cases examined by the Commission of Inquiry.

The DGB was, however, concerned about the absence of action by the Federal Government, certain Länder, as well as subordinate authorities to heed the conclusions from the report and to remove those restrictions from employment which did not comply with the provisions of the Convention. In its report for the period 1 July 1986 to 30 June 1987, the Government reconfirmed its legal position without showing an intention to draw consequences from the report of the Commission of Inquiry. On the contrary, it had once again tried to demean the binding nature of the recommendations by referring to the minority position taken by one member of the Commission. The Government representative had done this again today. The DGB recognised that a fundamental change in practice could not be implemented rapidly in all cases, but it noted that in certain Länder where the parliamentary majority and governmental responsibility were held by other parties than at the federal level, practice did conform to the Convention, and following recent elections in one Land, the former opposition had, on assuming governmental responsibility immediately introduced changes to modify the practices which had been followed up to that date.

The DGB thus looked for a practice which was in conformity with the Convention to be extended to other Länder and to the Federal Government as well. It was up to the Government to indicate that it recognised its obligation to change administrative practice and to show up a way towards the adoption of rules which take account of the recommendations of the Commission of Inquiry. If according to the Government, that would require legislative amendments, these should be introduced. The Government could not hide behind the interpretation of present statutes by independent courts.

This was not to place to explain the positions of the different constitutional bodies in the country, but legislation as applied by the courts must be in conformity with the Convention which, following ratification, forms part of the law in force in the country. However, it was precisely the decision by the Labour Court of Oldenburg that had been referred to by the Committee of Experts in a positive sense which was quashed by a superior Court, and the Federal Administrative Court maintained its previous practice which denied the obligations noted in the report of the Commission of Inquiry. A considerable number of concrete cases were actually before the courts, but unfortunately developments should no tendency towards improvement. Moreover, if persons concerned had not gone before the Federal Constitutional Court it was because this Court had refused to consider similar complaints over the last years, as had been pointed out by the Commission of Inquiry in paragraph 456 of the report.

However, the Government representative might explain why the Government had no gone before the International Court of Justice in accordance with article 29 of the ILO Constitution, under which a government which did not accept the recommendations of the Commission of Inquiry could submit its case to the Court. Furthermore, the subject-matter of Convention No. 111 had not been considered in the decision of the European Court of Human Rights to which the Government had referred.

As the Committee of Experts noted in their conclusions, the Government had not taken any measures towards the amendment of existing legislation or current practices and it had stated the view that it was not bound by the recommendations of the Commission of Inquiry either in international law or in domestic law. A similar position had been taken by certain Länder governments. He stressed that a clear indication was expected now from the Federal Government that it recognised the conclusions and recommendations of the Commission of Inquiry as binding. It was for the Government to apply these recommendations and to change national practice. These recommendations could be applied in different ways but if the choice of means belonged to the Government, it was the result which counted, and the Commission had the right to expect that the Government would indicate basically a direction chosen which would show its willingness to overcome the existing difficulties. In the general debate on the Convention, the spokesman for the Employers' members stated that it was a principle of enlightened humanism that discrimination based on political opinion would not be tolerated. The trade unions would welcome that an administrative practice which had damaged the reputation of the country would finally be ended. In his report the Director- General had asked the member States to show a willingness within a common effort to respect the obligations which they had freely undertaken. This should also be valid for the elimination of discrimination in employment and occupation in the Federal Republic of Germany.

The Workers' members stated that they treated the problems raised by the application of Convention No. 111 by the Federal Republic of Germany with great seriousness and grave concern. Unfortunately violations of human rights did occur in democratic countries even where there was a will to protect them well. This question had been discussed in this Committee since 1981. Discussion was suspended in 1983 while the issue was first examined under the representation procedure and then by a Commission of Inquiry under article 26 of the Constitution. The Commission of Inquiry, which presented its detailed and complete report in February 1987, concluded that Convention No. 111 had not been fully complied with. It was unfortunate to have to note that as new cases had occurred after the adoption of the Commission's conclusions, the Convention was still not being complied with, and the problem remained. There existed notable differences in the manner in which the legislation was implemented in regard to the duty of faithfulness to a free democratic order imposed on public servants and applicants to public service. The Commission of Inquiry had concluded that actual practice in certain Länder and by certain federal authorities amounted to exclusions from the public service which could not be justified either by the inherent requirement of a particular job (Article 1, paragraph 2, of the Convention) or on the basis of activities prejudicial to the security of the State (Article 4). Although the Government had referred to the minority opinion expressed by one member of the Commission, the fact remained that all the supervisory bodies which had examined the case, and this comprised the Committee of Experts, the Conference Committee when it examined the case previously, the Governing Body Committee and the Commission of Inquiry, had consistently reached the same conclusion on the matter.

The Workers' members recalled that the Government had confirmed its support for the supervisory machinery of the ILO and its wish to co-operate. However, it did not accept the conclusions of the Commission of Inquiry. If it disagreed with the conclusions it could have submitted the matter to the International Court of Justice in accordance with the Constitution, but it has decided not to avail itself of that possibility. The position of the Government was not satisfactory. A State which claims to be a State ruled by law should either use the avenue of appeal open to it or should accept and implement the conclusions of the Commission of Inquiry. There was no other choice. A Government which only participated in the supervisory procedures as a formality and which ignored the outcome undermined these procedures. For declarations of support to ILO supervisory procedures to have real significance, they must include willingness to take account of conclusions adopted. The Workers' members expected solutions from the Government; these were diverse but the Government should propose appropriate legislation to the Federal Parliament. That the problem was complex because of the federal structure of the country was acknowledged, but this complexity did not reduce principles to nothing. It was, after all, the federal State that had ratified the Convention and it must therefore take responsibility. It could not content itself with vague promises of information. It was necessary that information be given on intentions, on steps to be followed, on the means by which the objective was to be achieved and on a time-table, and the Workers' members, who were extremely concerned by this issue, wanted to see concrete results in the near future.

The Workers' members were in complete agreement with what had been very clearly stated by the Committee of Experts in this regard in paragraph 7 (g) of their observations. The Workers' members joined in the hope expressed by the Committee of Experts that the Government should re-examine the situation as a whole with representatives from the workers' organisations involved and, taking account of the Convention and the remarks made by the Commission of Inquiry in its report, should adopt appropriate measures to eliminate the remaining difficulties in the application of the Convention. They stressed the importance of discussion for democracy in general, for the application of the Convention, and for equal opportunity.

The Employers' members recalled that no principle was more important than non-discrimination and certainly with respect to political opinion. On the other side a State must be able to count on the loyalty of its own employees. This was an important and difficult case. For the first time in the ILO's history a commission of inquiry had not been unanimous in its decision. The case had a long history beginning in the mid-1970s and it had been discussed regularly in the Committee in 1981, 1982 and 1983, and the issue concerning the requirement of all public employees to abide by a duty of faithfulness to a free and democratic society had resisted resolution over a long time. This was a positive example of how the ILO's supervisory machinery should work; while at this time the difficult problem had not been solved, the Government had co-operated at all stages by providing information and consenting to a commission of inquiry on its soil. The Employers' members noted that the Commission of Inquiry recommended that the existing measures relating to the duty of faithfulness be re-examined by the Federal Republic and they took it from the statement of the Government representative that it was the Government's intention to do so, although in the English translation they did not hear him say that, so they asked the Government representative to make clear that, in the context of annual reports, the Government intended to do so. The issue in this case really related to the broad brush the Government had applied to public service applicants and employees without following, as the Commission of Inquiry had criticised, the principle of proportionality found in national law and practice. From the employer perspective, the issue came down to the proper balance of the first paragraph of Article 1 of the Convention, dealing with the principle of non-discrimination on the basis of amongst other things, political opinion, and the second paragraph, which made room for distinctions and exclusions based on the inherent requirements of a particular job. In her statement to the Conference, Mrs. Aquino had referred to the benefits and liabilities of free and democratic societies and the problem of spaces created when there was freedom for good and evil, and the question here seemed to be the amount of space provided in free societies for evil. These were complicated issues; the Employers' members had looked at the entire record of the case in some detail, and while it had been repeated that the Committee's task was not to make fine judicial decisions, they considered that in view of the split of the Commission of Inquiry and the decisions of the European Court of Human Rights, there was room for disagreement on the result in this case. Moreover there was a question relating to the uniformity of application of all human rights instruments including Convention No. 111. The Employers' members knew in particular the Government's unique historical and geographical position and they also noted that applicants for employment who were denied that employment and officials who were disciplined or discharged were provided with extensive due process rights including the resort to the courts, as shown in the Commission of Inquiry report. Article 2 of the Convention provided for a number of alternative methods of implementing its requirements, one of which was through the courts, and this was also recognised in paragraph 558 of the Commission of Inquiry report. Reference had been made to court decisions which were applying current legislation in a way that protected employee rights, so legislation was not the only way to approach the case. Moreover the highest court in the Federal Republic had not considered an application on the cases involved. The Employers' members were encouraged that the Government had agreed to provide detailed reports for consideration by the Committee of Experts in the future, and they hoped that measures for implementing the Convention would indeed sincerely be reexamined and that this would lead to solutions to the problem in the near future through appropriate action, in consultation with employers' as well as workers' organisations.

The representative of the World Federation of Trade Unions reminded the Conference of the representation his organisation had made in 1984 and the recommendations of the Commission of Inquiry which had invited the Government to take the necessary measures to implement this Convention. These recommendations which were binding had been reconfirmed by the Committee of Experts in its report. His organisation fully supported the observations made by the Committee of Experts and asked the Government to take appropriate action. They noted, as had the Committee of Experts, that over the past year since the Commission of Inquiry had presented its report, the Government had made no step in the direction of the changements required, and the continued practice of "work bans" was confirmed by developments in individual cases over the last few months, notably those concerning official H. Bastian and the teachers M. Schachtschneider, U. Foltz, U. Lepa, R. Schön and Mrs. I. Schachtschneider, and many others. The latest case concerned Mr. K. O. Eckartsberg, an English and sports teacher and active trade unionist, whose case had already been mentioned in the report of the Commission of Inquiry and who had been banned for life from the public service in May 1988 by the Hanover Administrative Tribunal which refused to consider comprehensive evidence of the professional and democratic commitment of the accused. His organisation supported the requested made by the Committee of Experts and the DGB that the recommendations made by the Commission of Inquiry be applied without delay.

The representative of the International Federation of Free Teachers' Unions stressed the importance of the report of the Commission of Inquiry for the whole field of education, since most of the individual cases examined concerned teachers or applicants for teachers' posts. Moreover, that report contained in paragraphs 566 et seq. very important indications concerning the political rights of teachers, drawn from the UNESCO/ILO Recommendation concerning the Status of Teachers, adopted in 1966. This Recommendation indicated, in particular, "that the participation of teachers in social and public life should be encouraged in the interests of the teachers' personal development, of the educational service, and of society as a whole" and that "teachers should be free to exercise all civic rights generally enjoyed by citizens and should be eligible for public office". His organisation welcomed the results and the detailed and well informed reasoning of the report of the Committee of Inquiry, and stressed the importance of the procedure provided for in article 26 of the Constitution and the legal force of the recommendations. It expressed its great concern that the Government had not yet taken the necessary measures to implement these recommendations; this had to be taken as contempt for international legal standards. Dismissals continued and had been confirmed by the courts without regard to the recommendations of the Commission. Although the generally negative situation regarding recruitement of teachers tended to hide the dimension of the problem, new cases, for instance in Baden-Württemberg, showed that the authorities had not abandoned their position of principle, which consisted of excluding from employment those people who for example stood as candidates for certain legal political parties. His organisation called upon the Government to put into practice, as quickly as possible, the recommendations of the Commission of Inquiry.

The Workers' member of Norway stated that the Government of the Federal Republic of Germany, by opposing the conclusions of the Commission of Inquiry, had behaved flagrantly in contradiction to the Constitution of the ILO and the basic rules on which the ILO supervisory machinery was based. This fundamental lack of respect for the ILO supervisory bodies represented a serious attack on the very authority and integrity of the ILO as a tripartite organisation established by States. The Committee of Experts had in an independent, objective and impartial manner clarified in its report the issues on which the Federal Republic of Germany had not acted in accordance with the law, by neglecting the ILO legal system for supervision and by not complying with Convention No. 111. The Government had expressed its agreement with a member of the Commission of Inquiry who represented a minority opinion, thus showing that Germany was not willing to co-operate with ILO supervisory bodies in accordance with the ILO Constitution. It was not accepted in any civilised legal system that the respondent who had been found failing was entitled to escape from legally binding conclusions drawn up by a juridical organ in a majority decision by holding to the minority which had expressed the views of the respondent. The Government by flagrantly neglecting the ILO legal system on grounds of political convenience, joined others who had previously sought to undermine the present Com- mittee's confidence in the ILO supervisory bodies and its respect for opinions on legal questions given by these bodies. In a statement made in July 1987 to the Federal Diet the Government stated that the recommendations of the Commission of Inquiry had no binding force either in international law or in domestic law. The Committee of Experts refuted that view, in stating in its report that while a Government retained considerable freedom in choosing the means of ensuring compliance with a ratified Convention, this did not diminish its obligations under article 19 of the ILO Constitution, to make the provisions of the Convention effective. By these comments the Committee of Experts expressed the opinion that the conclusions drawn by the Commission of Inquiry are based on the provisions of the Convention No. 111 which must be implemented in the domestic law of the Federal Republic of Germany. This could not be questioned by the Federal Republic of Germany by any other means than by the procedure established in article 29 of the Constitution, by requesting an interpretation from the International Court of Justice, and as long as the Government had not done so, it had to act in accordance with the conclusions of the Commission of Inquiry. Given the negative consequences of the Government's attitude for the legal status of civil servants in the Federal Republic of Germany, and for the whole supervisory machinery of the ILO, he proposed that the Committee should discuss next year whether the case of the Federal Republic of Germany should be mentioned in a special paragraph.

The Workers' member of the Byelorussian SSR noted with satisfaction the readiness of the Government to co-operate with the Committee but he felt that the explanations which had been given were entirely unsatisfactory. The administrative practice of the country did not comply with the Convention, violated fundamental human rights and did not correspond to the standards of modern civilised society. He agreed with the statements of the Workers' members from the Federal Republic of Germany and other countries who had spoken before him, and hoped that the Government was ready not only to participate in a dialogue but also to take the necessary measures which would eliminate the discrepancies pointed out in this Committee, and that it would explain concretely what measures it intended to take in the near future to bring administrative practice into conformity with the Convention.

The Workers' member of Spain welcomed the scope of Convention No. 111 which was larger than that of the International Covenant on Civil and Political Rights. Convention No. 111 protected even those who expressed political ideas or opinions which were in contradiction with the constitutional legal order. An applicant or official should therefore benefit from this protection unless he occupied a post of a highly confidential nature which was an exception in all political systems.

The Worker' member of the Federal Republic of Germany, referring to the statement by the Employers' spokesman that persons concerned could seek legal redress, noted that the persons concerned had indeed turned to independent courts but, in many instances, they had lost their cases. The principle of independent courts was important for the German trade unions, but a formal legal question should not cover an unlawful practice, and the legislation, as applied by the courts, should comply with the Convention. As the Labour Court of Oldenburg had noted in a decision quoted by the Committee of Experts in its observation, national legislation and even the national Constitution of the country should, as far as possible, be interpreted in a manner which would ensure respect of obligations under international law. Having considered the provisions of Convention No. 111 and the conclusions of the commission of inquiry, the court examined the case in the light of inherent requirements of the particular job and made a decision in favour of the complainant. It must be stressed that this decision was quashed by the Land Labour Court. Also, the Federal Administrative Tribunal has not changed its earlier case law.

The Workers' member of the United Kingdom had had no intention of joining in the debate because the case had been expressed admirably both by the Workers' member of the Federal Republic of Germany and the spokesman of the Workers' members, but elements were emerging in the discussion which concerned and indeed provoked him. This particular case was not going to be solved by fudging, by talking about geography, by talking about spaces in which freedom can operate, or other equivocations. The Committee was dealing with hard facts and it had to deal with the situations as revealed by the Committee of Experts. Of course the issue was complex. Issues always seemed to be complex when a government did not want to implement a Convention. There were difficulties sometimes because governments were unable to make legislative changes because the legislature would not allow them to do so. That could be understood, but it could not be condoned by the Committee. Employers' and Workers' members were not to make excuses for governments, nor did it help in the work of the Committee if some criticised other governments but did not join in when their own government was being criticised. In some countries there was a requirement to respect a democratic society before getting a public service job; in other countries, there were particular cadre requirements before getting a public service job; in yet others one must not be a Baha'i or a freemason if one wanted a job. These were all difficulties the Committee had to deal with and it was not to deal gently with one case and lash out in another. Gentlemanly behaviour by a Government representative was no substitute for action, nor could governments be congratulated merely because they turned up to the Committee. What was important was in fact observing the Convention, listening to the Committee of Experts, having a dialogue with the present Committee. Of course this dialogue would have to be continued by the Committee in this most difficult case, but it should be conducted with a measure of honesty. He agreed with the Workers' member of Norway in recognising the difficulties in accepting on this occasion that the case was not yet going to be solved as could be seen from the statements made. But as the workers had had to remind many governments before, there had to be an end to the discussion at some stage or other, and a solution had to be found, and the Committee was rapidly approaching that position in this case.

The Government representative of the Federal Republic of Germany stated that it followed from the discussion that none of the speakers had questioned that the Federal Republic of Germany was a free democratic and social constitutional State. This State provided every citizen the right to go before court and, where constitutional issued were involved, to seek redress from the Federal Constitutional Court. As he had indicated in his introductory statement, there was indeed a fundamental question concerning the Constitution involved here. Precisely because the Federal Republic of Germany was a State under the rule of law, citizens should defend their rights. The Constitution of the Federal Republic of Germany contained an anti-discrimination provision which applied to free political opinion as well, the scope of which was equivalent to the legal protection given in Convention No. 111. Why have the individuals concerned not exercised their democratic rights and gone before the Federal Constitutional Court, which last happened in 1975. It has been said that the parties of which they were members were not outlawed. This was merely an expression of the liberal political system in the country. The fact that the parties of which the officials concerned were members were not pronounced unconstitutional could not be turned round and used as an argument to say that they were not being liberal. Parties could stand for elections and it was up to the voters to decide. This party privilege, i.e. that parties could freely stand for elections unless they are outlawed, could not be invoked by an individual civil servant because he was not a party.

The majority opinion of the Commission of Inquiry stated that on the whole the laws of the Federal Republic of Germany were in order but that there were shortcomings in practice. Even if practice was not uniform it should be asked who was responsible for ensuring legal unity in practice. This was within the competence of the Constitutional court of the Federal Republic and had not been done yet in all the cases mentioned by the previous speakers. It has been claimed that the Government has not complied with procedures or conclusions or that it has only adopted a formal position. However, the Government has taken actively part in the procedures and it did believe in the moral force of the supervisory system, including the recommendations of a Commission of Inquiry. With regard to the quality of these recommendations, no one had claimed that the recommendations of a Commission of Inquiry under article 26 had the same effect as court rulings. In the discussion at the 1984 International Labour Conference, when the entire supervisory machinery was discussed, the Office stated in concluding the discussion that none of the supervisory bodies of the ILO were tribunals. This should not be interpreted as an attempt to devalue the recommendations and conclusions which had an important moral force. The Government held a great deal of respect for them in the same way that it had a great deal of respect for the findings of the majority of the Commission of Inquiry in its report. It also respected, however, the minority view within the Commission and believed that dialogue should be continued when a supervisory body such as this one was unable to reach agreement in the Inquiry concerning the Federal Republic. The Government would continue the dialogue, abiding by the procedures, and it would provide all the necessary information so that an appropriate conclusion could be reached on the substance of the case which the Government felt was not yet possible at this stage.

The Workers' members noted that their previous statements would be reflected in the report and in the conclusions. They recalled the great importance of the problem, not only within the Federal Republic of Germany, but also because of its possible repercussions at the level of the European Communities. If case law was not yet well established because the higher courts had not yet had to give an opinion, this should be done quickly. However, besides the legislation and case law there were other methods which could permit results to be reached in the application of the Convention. The Committee of Experts had referred there to in its report in stating that it was necessary to try to find a solution with all the parties concerned, if not at the legal legislative level at least in practice to reach compliance with the Convention. The Workers' members hoped that this would take place soon. The Government had a moral obligation. Dialogue would be resumed in the present Committee next year.

The Employers' members stated their agreement with the Workers' members.

The Committee took note of the detailed information supplied by the Government representative and of the extensive discussion that took place. The Committee noted that the Government referred to its desire to support the ILO procedures of supervision and to promote the dialogue with the supervisory bodies. The Committee noted, however, with regret, that the Government maintained its position of disagreement with the conclusions of the Commission of Inquiry. The Committee shared the views expressed by the Committee of Experts that the Government's position did not affect the validity of the conclusion of the Commission of Inquiry. While welcoming the opportunity to resume the dialogue with the Government, it associated itself with the hope expressed by the Committee of Experts that the Government would review the situation in consultation with the workers' organisations concerned and the employers' organisations and would adopt appropriate measures to overcome the existing difficulties, having due regard to the recommendations of the Commission of Inquiry, to the comments of the supervisory bodies of the ILO and to the dialogue within the Conference Committee.

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Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Federal Anti-Discrimination Agency. The Committee notes the detailed information provided by the Government on the activities of the Federal Anti-Discrimination Agency which plays a central role in promoting the implementation of the General Equal Treatment Act by disseminating information, responding to queries from individuals, facilitating the settlement of disputes by non-judicial means, research and cooperation with a variety of partners, including workers’ and employers’ organizations. On average, some 220 requests for advice were received per month, a majority of which relate to employment. The Committee welcomes that the Agency collects information on judicial decisions relating to the Act. The Committee asks the Government to continue to provide information on the activities of the Federal Anti-Discrimination Agency. Please continue to provide information on the emerging jurisprudence under the General Equal Treatment Act.

Equality of opportunity and treatment of men and women. The Committee notes that the labour force participation rate of women continued to increase, reaching 65.5 per cent in 2008 (75.9 per cent for men). The third implementation assessment of the 2001 agreement between the Government and the main employers’ organizations on the promotion of equal opportunities of women and men in the private sector found that women’s share among university graduates has continued to increase, although their representation in certain disciplines, such as engineering, remains low. Women were catching up in almost all manual trades. However, women with young children are still disadvantaged in the labour market and are still under-represented in management positions (31 per cent in 2006 according to the Führungskräfte-Monitor). The Committee notes the detailed information provided on the numerous initiatives and programmes to promote gender equality in the private and public sectors, such as promotional campaigns, provision of information, research and cooperation with the social partners. The Committee asks the Government to continue to provide information on measures taken to promote gender equality in employment and occupation, particularly with a view to eliminating horizontal and vertical occupational segregation based on sex, and the results achieved by such action. Please also provide detailed statistical information on the position of men and women in employment and occupation.

Reconciliation of work and family responsibilities. The Committee notes the entry into force on 1 July 2008 of the Care Time Act (Pflegezeitgesetz). The Act provides for an entitlement of employees to be absent from work for up to ten days, in emergency situations, to care for close family members. The Act also provides for an entitlement to full or partial absence from work for longer term care of close family members (up to six months, limited to enterprises with 15 or more employees). The 2008 Child Support Act (Kinderförderungsgesetz) provides for entitlement to a place in a day-care facility for every child from 1 to 3 years of age. The Government has continued to encourage enterprises to take family-friendly measures in terms of working time, work organization and location, as well as enterprise-based childcare. The Committee also notes that the parental allowances have assisted women in returning to work and staying in employment, while also increasing the number of fathers taking childcare leave. The Committee asks the Government to continue to provide information on the measures taken to promote the reconciliation of work and family responsibilities, including information on the implementation of the new Care Time Act and the progress made in ensuring childcare coverage.

Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes that the Federal Anti-Discrimination Agency covers discrimination based on ethnic origin in its activities. According to the Government’s report, the Agency was contacted by 391 persons between August 2006 and April 2009 regarding ethnic discrimination (14.6 per cent of all cases). The Government also refers to certain initiatives at the enterprise-level to promote diversity. Further, the Committee notes that according to 2006 data, approximately 15 million persons in Germany had an immigration background. Generally lower levels of education, professional qualifications and German language skills continue to disadvantage them in the labour market. In 2006, the estimated proportion of persons with migration background in the 25–64 age group who were in employment was markedly lower than for the rest of the population (75 per cent as compared to 81 per cent), with a particularly low level of employment of women with migration background. The Committee notes that a National Integration Plan has been elaborated to address the situation of migrants in a coordinated manner, including as regards their access to the labour market. The Committee asks the Government to continue to provide detailed information on the specific measures taken to address discrimination based on race, colour or national extraction in employment and occupation, including relevant activities of the Federal Anti-Discrimination Agency, and at the enterprise level. The Committee also asks the Government to continue to provide comparable data on the situation of persons of migration background in the labour market and the results achieved by measures aimed at their better integration.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Articles 2 and 3 of the Convention. Application in practice. The Committee notes from the Government’s report that approximately 1,800 contacts were made with the Federal Non-Discrimination Office since the General Equal Treatment Act entered into force on 18 August 2006. The issues raised with the Office related mainly to discrimination on the ground of age (27 per cent of the requests), sex (26 per cent) and disability (24 per cent). The Committee requests the Government to continue to provide information on the activities of the Non-Discrimination Office, including on the specific steps taken to address the cases brought to the attention of its Office. The Committee reiterates its request for information on any relevant administrative and judicial decisions relating to the application of the General Equal Treatment Act that may have been issued during the reporting period, including any decisions concerning section 9 which allows for certain differential treatment in respect of employment by religious institutions.

Equality of opportunity and treatment of men and women. The Committee notes from the Government’s report that women’s employment rate continued to increase from 59.2 per cent in 2004 to 62.2 per cent in 2006, and to 63.2 per cent in the first trimester of 2007. The Committee notes the measures taken to promote women’s employment through promotion of self-employment, provision of professional training, creation of new jobs and evaluation of women’s competencies. The Committee further notes that measures were taken to facilitate the return to work of men and women after interruption of their employment relationship for looking after their children or other dependant members of their family, notably vocational guidance and further training. The Committee however notes that in 2006 men represented only 1.3 per cent of such “returning workers”. In this regard, the Committee welcomes that the parents benefit introduced in 2007 encourages a better sharing of family responsibilities between men and women workers by granting a higher level of benefits in cases where the father takes a portion of parental leave. The Committee requests the Government to continue to provide information on the labour market situation of men and women workers and on the measures taken to promote equality of opportunity and treatment for men and women. Please also provide information on the extent to which the new parent benefit is contributing to a better sharing of family responsibilities between men and women and to greater gender equality in the labour market.

Reconciliation of work and family life. The Committee welcomes the agreement reached between the federal Government, the Länder and the municipalities to increase the number of child-care structures for children up to 3 years of age to 750,000 units by 2013. Furthermore, the Committee notes that the Federal Ministry for Families, Older Persons, Women and Youth elaborated a programme to increase the provision of childcare by small and medium-sized enterprises, which was expected to be launched in 2008. It also notes the various initiatives and projects carried out to increase awareness among employers of the need to adopt policies sensitive to family needs at the enterprise level. According to a 2006 survey on the implementation of these initiatives, approximately 71.7 per cent of the employers interviewed attached importance to the adoption of family-sensitive measures and 23.4 per cent of the enterprises took between seven and nine measures favourable to family, including child-care services and flexible working time. The Committee requests the Government to continue to provide information on the measures taken to promote the reconciliation of work and family life, including information on the implementation of the 2008 programme of the Federal Ministry for Families, Older Persons, Women and Youth. Noting the number of initiatives so far taken, the Committee also encourages the Government to reconsider ratifying the Workers with Family Responsibilities Convention, 1981 (No. 156).

Occupational sex segregation. The Committee notes that various projects continue to be implemented to address occupational sex segregation, particularly through vocational guidance for both girls and boys aimed at overcoming traditional stereotypes concerning “female” and “male” jobs. The Committee further notes the measures taken to promote women’s entrepreneurship and it notes that, out of 3.3 million small and medium-sized enterprises, approximately 1.2 million are at present run by women. However, the Committee notes the Government’s indication that women are still under-represented in decision-making positions and that a monitoring body has been established to examine the situation. The Committee requests the Government to continue to provide information on the measures taken to address occupational sex segregation, including information on the progress made in ensuring equal access of women to decision-making positions.

Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes the Government’s indication that workplace agreements and codes of conduct have been adopted at the enterprise level to address racism and xenophobia but that the Government lacks detailed information in this regard. The Committee requests the Government to provide more detailed information on the measures taken to address racial or ethnic discrimination at the workplace, including examples of any concrete measures taken at the enterprise level or in cooperation with the social partners. The Committee also reiterates its request for information on the measures taken or envisaged to promote equality of opportunity and treatment in employment and occupation of members of the various ethnic minorities, whether national or not, particularly the Roma.

With regard to the situation of persons with immigrant backgrounds, the Committee notes from the Government’s report that the unemployment rate of foreigners is still almost twice as high as that of the economically active population as a whole despite a wide range of measures which have been taken, notably language and vocational training and guidance, and counselling. The Committee requests the Government to provide information on how the employment situation of persons of immigrant background has evolved over recent years and on whether any measures are being taken to review and reinforce, if necessary, the strategies and measures in place to address their situation.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the comments made by the German Confederation of Trade Unions (DGB).

1. Inherent job requirements. Further to its observation, the Committee notes that section 9 of the General Equal Treatment Act, 2006, allows for certain differential treatment on the basis of religion or world view (Weltanschauung) in respect of employment by religious communities (Religionsgemeinschaften). In order to enable the Committee to continue to assess the provisions of section 9 in the light of Article 1, paragraph 2, of the Convention, the Committee requests the Government to provide information on any future court decisions applying these provisions.

2. Equality of opportunity and treatment of men and women. The Committee notes that the employment rate of women slightly increased from 58.9 per cent in 2002 to 59.2 per cent in 2004. During the same period, the employment rate of men decreased from 71.8 per cent to 70.8 per cent. The unemployment rate for women was 10.3 per cent in 2005, compared to 8.9 per cent for men. The Committee notes the DGB’s concerns over the high concentration of women in part-time jobs, over-average representation of women among the long-term unemployed, and difficulties faced by women returning to work. The Committee requests the Government to continue to provide statistical information on the labour market situation of men and women, and to provide information on any measures taken or envisaged to address the issues raised by the DGB, and the impact thereof.

3. The Committee notes from the Government’s report and a number of subsequently issued government publications that action to promote gender equality in the German labour market continued to focus on vocational training and guidance, promotion of professional advancement of women, and measures for men and women to facilitate reconciliation between work and family life, particularly the expansion of childcare services. In this regard, the Committee notes the information contained in the 2003 and 2006 implementation report under the 2001 agreement between the Government and leading employers’ organizations. According to the DGB, the 2003 implementation report illustrated best practices but did not measure progress in achieving equal opportunities for men and women in the private sector where systematic and sustainable policies towards equality were still absent. The Committee requests the Government to continue to provide information on the measures taken to:

(a)   promote gender equality in employment and occupation, as well as on the impact of such measures on the employment situation of men and women; and

(b)   seek the cooperation of both workers’ and employers’ organizations with a view to promoting equal opportunities for men and women, particularly through workplace measures.

4. Equality of opportunity and treatment irrespective of race, colour or national extraction. The Committee notes the Government’s indication that the Industrial Relations Act (Betriebsverfassungsgesetz) offers employers and work councils a variety of possibilities to contribute to the integration of foreign workers and the elimination of racism and xenophobia at the workplace, including the conclusion of workplace agreements on these issues. While noting the Government’s statement that there was no legal requirement to report such workplace measures to the Government, the Committee nonetheless would appreciate receiving some indications on the extent to which workplace measures to combat racism and xenophobia are being put into practice. Noting the statistical information provided by the Government concerning the labour market situation of foreign citizens, the Committee reiterates its request to the Government to provide information concerning equality of opportunity and treatment in employment and occupation of members of the various ethnic minorities (nationals and non-nationals), particularly the Roma, and on whether any consideration is being given to the issue of how to monitor their employment situation.

5. As regards the employment situation of migrants, the Committee notes that, in 2003, the unemployment rate of female and male foreigners was almost double that of the active population as a whole and that the Federal Employment Agency made the integration of persons with immigrant backgrounds one of its priorities. The Committee requests the Government to continue to provide information on the measures taken to promote equality of opportunity and treatment of persons with immigrant backgrounds and the results achieved through such measures.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Articles 1 and 2 of the Convention. Legislative developments. The Committee notes with interest the entry into force, on 18 August 2006, of the General Equal Treatment Act and the Soldiers Equal Treatment Act, which have been adopted with a view to implementing recent European directives concerning the principle of equal treatment. The Committee notes that the General Equal Treatment Act prohibits direct and indirect discrimination against employees based on race or ethnic origin, sex, religion or world view (Weltanschauung), disability, age or sexual orientation. The Act also prohibits harassment on any of these grounds and sexual harassment. The Committee notes with interest that the new legislation not only prohibits discrimination in employment and occupation but also establishes an obligation for the employer to take the measures necessary to protect employees from discrimination, including through preventative measures (section 12) such as information and training for staff concerning equal treatment, and to provide appropriate procedures to address cases of discrimination. The Committee also notes the establishment of the Federal Non-Discrimination Office within the Federal Ministry for Families, Older Persons, Women and Youth. The Non-Discrimination Office has a broad mandate that includes awareness raising, research, legal advice, mediation and reporting to Parliament. The Committee requests the Government to provide in its future reports information on the practical application of the new legislation, including relevant administrative or judicial decisions and regarding the activities of the Non-Discrimination Office.

The Committee is addressing a request directly to the Government.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and requests the Government to include information as indicated below in its next report.

1. Equality of opportunity and treatment of men and women. With reference to its 2002 general observation, the Committee thanks the Government for the detailed information provided on the issue of sexual harassment. The Committee invites the Government to continue to provide information with regard to the reform of the 1994 Act on the protection of employees from sexual harassment at the work place and other efforts under way to enhance the prevention of and protection from sexual harassment at work.

2. With reference to its previous comments regarding equality of opportunity of men and women in the federal civil service, the Committee notes that detailed information, including statistical data, on the practical application of the 2001 Act on the implementation of equality of treatment of women and men will be available in 2005 when the Government is due to report on this matter to Parliament. The Committee looks forward to receiving this information with the Government’s next report, as well as any administrative or judicial decision applying the Act that may be handed down. The Government is also requested to provide statistical information on the gender composition of the labour force in the private and public sector by occupation and level of responsibility.

3. The Committee notes with interest that the Government has concluded an agreement with the leading employers’ organizations on 2 July 2001 to promote equal opportunities of men and women in the private sector. It further notes that the implementation of the agreement will be supervised by a high-level committee, and that progress made at the enterprise level with regard to the matters covered by the agreement (training, promotion, and combining family and work) will be examined every two years. The Committee requests the Government to provide a copy of the agreement and information on its supervision and implementation in practice. The Government is also requested to continue to provide information on any other measures taken or envisaged to further promote gender equality in the labour market, including under the Frau und Beruf programme, and information on results achieved and remaining obstacles.

4. The Committee notes from the Government’s report that the second Act on modern services in the labour market of 23 December 2002 (BGBl. 2002, Part I, No. 87) has established a legal framework for transforming illegal work in private household, which is often performed by women, into declared "marginal employment" covered by social insurance, including pension. Noting that the Government expects the Act to have a positive effect on women’s equality of opportunity and treatment, the Committee invites the Government to provide information on the implementation of this Act.

5. With reference to its previous comments the Committee thanks the Government for the updated information provided on the Government’s efforts to promote equal access of men and women to vocational training and guidance, including in the technical professions, and looks forward to receiving similar information in the Government’s future reports.

6. Discrimination on the basis of political opinion. The Committee recalls its comments concerning the access to and dismissal from the public service of persons who were involved in the activities of the Ministry for State Security or the Office for National Security of the former German Democratic Republic (GDR). In this respect, the Committee notes that extraordinary dismissal of public servants who were involved in the activities of these bodies is still possible under the terms of the German Unification Treaty (Annex I, Chapter XIX, Topic A, section III, No. 1, paragraph 5). It also notes the Government’s indication that there were no changes in the jurisprudence of the higher courts with regard to such extraordinary dismissals. With reference to its previous comments with regard to the decision of 23 February 1999 of the state government of Mecklenburg-Vorpommern concerning the screening of candidates for civil service positions, the Committee notes the Government’s indication that the practice in Mecklenburg-Vorpommern was not stricter than in any Land. Since 1999 there have been 54 cases of inquiries in past activities for the Ministry for State Security or the Office for National Security of the former GDR. While the Government did not indicate the number of candidates actually rejected on the basis of such inquiries, it stated that at this juncture this occurs only in very exceptional cases. The Committee requests the Government to continue to provide information on any relevant court decision involving dismissals of public servants or rejections of candidates for the public service based on his or her past political activities.

7. Discrimination on race, colour and national extraction. Noting that the preparation of new anti-discrimination legislation to implement the three recent EU directives on this issue (2000/43/EC, 2000/78/EC, and 2002/73/EC), the Committee requests the Government to provided information on any progress made in this regard in its next report. With regard to discrimination on the basis of race, colour and national extraction, the Committee notes from the Government’s 2002 report under the International Covenant on Civil and Political Rights that the Act to reform the Works Constitution Act promotes the integration of foreigners at the enterprise level and the elimination of xenophobia at the work place. This includes a duty of the employer to report on the integration of foreign workers and the right of work councils to request measures to eliminate racism and xenophobia (CCPR/C/DEU/2002/5, paragraph 336). The Committee requests the Government to provide a copy of this legislation and information on its practical implementation. Recalling its previous comments, the Committee also requests the Government to provide information on any other measures taken or envisaged to ensure equal access to employment of members of minority groups, including in particular persons of foreign background and the Roma, irrespective of race, colour or national extraction. In the absence of any statistical information on the employment situation of minorities, the Government is particularly requested to indicate whether any consideration is being given to the issue on how to monitor the employment situation of minorities in order to ensure their equal access to employment.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the attached documentation.

1. Discrimination on the ground of political opinion. Further to its previous comments concerning the access to the public service of persons who were involved in the activities of the Ministry of State Security or the Office for National Security of the former German Democratic Republic, the Committee notes from the Government’s report that there has been no change in the jurisprudence of the higher courts. In respect to its previous request to the Government to provide information on the number of applications refused employment on the basis of the decision issued by the state government of Mecklenburg-Vorpommern on 23 February 1999 concerning the screening of candidates for civil service positions, the Committee notes the Government’s statement to the effect that it had no information at its disposal to indicate that said decision had led to a rejection of applicants. The Committee requests the Government to continue to provide information on any new court decision involving dismissal or failure to hire a candidate for the public service on the basis of his or her past political activities, and on any rejection of a candidate for the public service on the basis of the 1999 screening decision of the state government of Mecklenburg-Vorpommern.

2. Discrimination on the ground of sex. The Committee thanks the Government for providing a copy of the fourth report of the federal Government on advancement of women in the civil service (Bundesdienst) covering the period from 1995 to 1998. The report concludes, inter alia, that the share of women among part-time workers remained very high throughout the service. It calls for vigilance in ensuring non-discriminatory recruitment procedures, as the rate of recruitment of women decreased to 45.9 per cent from rates of more than 50 per cent in previous years. No further progress was made as far as the representation of women in managerial positions in the higher service is concerned. In this context, the Committee notes with interest the entry into force on 5 December 2001 of the Act on the Implementation of Equality of Treatment of Women and Men of 30 November 2001, which replaces the Act on the Advancement of Women which had entered into force in 1994. The Committee notes that the new Act marks a shift from "advancement of women" to an approach towards "equal rights of women and men". The Act is more stringent than the previous legislation, prohibits direct and indirect discrimination, provides for further measures to reconcile family and professional life of men and women, and replaces the commissioners for women’s affairs by equal treatment commissioners with a strengthened mandate. The Committee notes in particular that section 8 provides for preferential treatment of women in decisions concerning appointment and promotion where women are underrepresented in a given area, the female and male candidates are equally qualified, and if there are no overriding reasons for the male candidate. It also notes that under section 9(1) the length of service, the age of the candidate, and the time which has elapsed since the candidate’s last promotion are to be considered in the determination of the qualification only if they are relevant for the aptitude, performance and capability of the candidates. Noting that section 4(7) exempts from the definition of indirect discrimination any measure, which is proportionate and necessary, as well as justified by objective reasons not related to the sex, the Committee hopes this exception will be applied in accordance with the Convention and limited to matters related to the inherent requirements of the job. The Committee is looking forward to receiving the first report on the implementation of the Act as provided for under section 25. The Committee asks the Government to provide information on the application of the new equality legislation in practice, including administrative and judicial decisions, and its impact on gender equality in respect of employment in establishments to which the Act applies. Please supply statistical data disaggregated by sex on the composition of the federal and Länder civil service and of the private sector by occupation and level of responsibility.

3. The Committee thanks the Government for providing a copy of its "Women and Work" programme, as well as the report on measures taken to enhance equality of opportunity of women and men. In this respect, the Committee notes that the programme combines a gender-mainstreaming approach with concrete measures and projects to promote equality. It notes the steps taken to promote equality in the private sector, including a dialogue with enterprises and trade unions and that preparations under way for equal opportunity regulations for the private sector. The Committee requests the Government to keep it informed on the progress made in drawing up such regulations, as well as in reviewing the current legislation on sexual harassment at work. Please also continue to provide information on the implementation of other measures under the "Women and Work" programme and any impact they have had on improving the labour market position of women.

4. With regard to its previous comments with respect to ensuring that transfers from full-time to part-time work are voluntary, the Committee notes with interest the entry into force on 1 January 2001 of the Act on part-time and fixed-term work (BGBl. I No. 59/2000). Under the Act, part-time workers cannot be treated different, in respect to remuneration and benefits, than full-time workers on account of their part-time status, unless there are objective grounds for such treatment (section 4). The Committee notes that anyone refusing to change from full-time to part-time work or vice versa is protected from dismissal (section 11) and that employers may not disadvantage employees asserting their rights under the Act (section 5). As regards the civil service, the Committee notes that the voluntary nature of part-time work is established by legislation which requires a formal request for a part time arrangement by the official, and that the salaries and benefits received by civil servants working part-time are reduced in proportion to their working time, while allowances relating to sickness, nursing, birth and death are the same as for full-time officials. The Committee also notes that section 15 of the Act on the Implementation of Equality of Treatment of Women and Men prohibits any disadvantage due to part-time work.

5. The Committee notes the information provided in respect to promoting the employment of young men and women through vocational training. It notes with interest that the Emergency Programme for the Reduction of Youth Unemployment - Training, Qualifications and Employment for Young People has been extended until 2003. The Committee also notes that 39.3 per cent of the persons participating in the programme were women, which corresponds to the rate of female youth unemployment. While previously many more young women than men sought vocational guidance, the Committee notes that during 1999-2000 half of the persons seeking vocational counselling were women. Noting the Government’s statement that the training situation continued to improve in 2000 but was not yet satisfactory, particularly in the new Länder, the Committee requests the Government to continue to provide information on measures taken or envisaged in this respect, including indications concerning results achieved. Please also provide statistical information on the number of young women engaging in training in occupational sectors traditionally dominated by men and on the number of men and women integrated into the labour market following vocational training.

6. Discrimination on the grounds of race, colour, religion or national extraction. The Committee notes the concerns of the European Commission on Racism and Intolerance (ECRI) concerning the access of individuals of foreign origin to the labour market and that in ECRI’s view indirect and direct discrimination frequently plays a large part in explaining this phenomenon [CRI (2001) 36, paragraphs 27 and 28]. In this context, the Committee notes that the Government is envisaging an anti-discrimination act prohibiting discrimination on the grounds of sex, religion, political opinion, disability, sexual orientation, race and ethnic origin, in line with the relevant EU directives, and asks the Government to keep it informed of the progress made in this respect. The Committee also requests the Government to provide information on measures taken or envisaged to ensure equal access to employment of members of minority groups, including in particular persons of foreign origin and the Roma, irrespective of race, colour or national extraction. Noting that statistical information on the situation of minorities in respect to employment is not available, the Committee recalls the importance of such information as to be able to able to plot trends and assess the impact of the national non-discrimination policy. It requests the Government to indicate how it is monitoring the employment situation of minorities in order to ensure their equal access to employment. Please also provide statistical or other information on the participation of minorities in training courses and a copy of the action programme to improve training opportunities for young migrants, which was adopted in the framework of the Alliance for Work in 2000.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

1. Discrimination on the grounds of race, colour and national extraction. Further to its previous direct request for information on the employment situation of German citizens belonging to ethnic minority groups, such as the Danish, Sorab, Sinti and Rom minorities, the Committee notes the information provided by the Government in response to a question posed by the United Nations Committee on Economic, Social and Cultural Rights concerning Germany's ethnic minorities (the text of the reply was supplied as an annex to the Government's report). The Government indicates that, while it is not aware of any cases of discrimination against members of the Danish, Sorab and Frisian minorities, the Central Council of Sinti and Rom has complained of the media's expression of prejudice against this group in some cases, particularly in the context of reporting crimes. The Committee notes the legislative measures adopted by the L nder authorities to combat this problem. It also notes from the 1998 report of the European Commission Against Racism and Intolerance (CRI (98)21) that the Federal Ministry of Labour and Social Affairs promotes programmes specifically aimed at women from minority groups, including non-citizens, introducing them to the German language and encouraging their participation in vocational training. According to the CRI report, measures have been put in place, coordinated by the Coordination Panel on Foreign Employees of the Federal Ministry of Labour and Social Affairs, to improve the employment prospects of young people from minority groups, including positive measures to improve their educational and vocational training opportunities. The Committee asks the Government to continue to provide information on measures taken or envisaged to eliminate discrimination against Germany's ethnic minorities, particularly the Sinti and Roma minority groups, and ensure their equal access to employment, vocational training and terms and conditions of employment in accordance with Article 1, paragraph 3, of the Convention. It also requests the Government to indicate which groups are designated as ethnic minorities in the country and to supply statistical data on the situation of these groups in the German labour market.

2. Discrimination on the ground of sex. The Committee once again requests the Government to supply a copy of the document tabled in Parliament on the impact of the Second Equality Act for the period 1996-98.

3. The Committee notes from the statistical data supplied by the Government that, in 1996, 93 per cent of part-time employees directly employed by the Federal Public Service were women. At the highest levels of other enterprises covered by the Federal Public Service Act, women made up 96 per cent of part-time employees. The Committee would be grateful if the Government would provide information on any measures taken to ensure that the transfer from full-time to part-time work is voluntary, as well as to ensure that part-time workers receive terms and conditions of employment, including occupational protections and benefits, equivalent to full-time workers, which may be determined in proportion to their hours of work.

4. The Committee notes the numerous initiatives undertaken by the Government to provide vocational training for jobseekers. It notes with interest that the "Emergency Programme for the Reduction of Youth Unemployment -- Training, Qualifications and Employment for Young People" adopted on 25 November 1998 contains special provisions for young women, including projects at the local and regional levels which promote the training of girls and women in jobs and occupations where they are under-represented. The Committee notes from the report that, under the programme, employment offices are charged with granting labour-cost contributions to facilitate the placement of young women in non-traditional sectors. The Committee requests the Government to supply information on the percentage of girls and women participating in such training courses, indicating the types of courses offered, and the distribution of men and women in the different courses. It notes with interest the Government's statement that, in 1997, there were 241,800 persons in training in the public sector, and that approximately three out of five training positions in public employment were filled by women. It also notes from the report that the percentage of women participating in public employment in the new L nder (64 per cent) is higher than in the old states (60 per cent). The report indicates that the current difficulties experienced by Germany in respect of the labour market have made the transition from training to employment more difficult. Data from the Industry Panel of the Interministerial Training Bureau (IAB) indicates that 58 per cent of those who successfully completed training in the western part of Germany in 1998 obtained employment. This figure represents a 5 per cent increase over 1996. In contrast, the new L nder saw a reduction in placement, from 52 per cent to 46 per cent. The report also reflects that women seeking vocational counselling outnumbered men in both the new (294,359 women compared with 280,631 men) and old L nder (804,179 women compared with 789,460 men). The Committee would be grateful if the Government would supply information in its next report on the percentages of women and men who were placed in employment following completion of vocational training.

5. The Committee notes from the report that the Government is planning a "Women and Work" action programme aimed at achieving equal representation of women in employment and society. The Committee would appreciate receiving information in the next report on the status of the programme mentioned.

6. Discrimination on the ground of religion. The Committee asks the Government to indicate whether any measures have been taken or are envisaged to ensure that individuals belonging to religious groups do not face discrimination in employment or occupation on the ground of their membership in that particular religious group. It would also be grateful if the Government would supply any judicial decisions at the federal and L nder levels on cases alleging religious discrimination in employment or in the ability to engage in economic activity.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

1. The Committee notes the Government's detailed report and annexed documentation, including data from the Federal Statistics Office and relevant jurisprudence.

2. Discrimination on the ground of sex. The Committee notes that women represent 63 per cent of the total workforce in establishments to which the Federal Public Service Act applies, other than the federal public service. It notes with interest the slow but consistent increase in the percentages of women occupying posts at the highest grades as civil servants and public employees directly employed in the federal public service, with 18 per cent of higher posts being occupied by women in 1996 (up from 16 per cent in 1993), although women are still under-represented in higher posts overall. It notes, for example, that despite the high proportion of women in establishments to which the Federal Public Service Act applies, other than the federal public service, only 24.5 per cent of posts in the highest grades, including senior management positions, were occupied by women in 1996. The Committee notes the Government's statement that the Second Equality Act, which entered into force on 1 September 1994, is making an appreciable contribution to increasing women's participation in senior public administration posts and in facilitating workers' conciliation of professional and family life. The Committee notes that section 2 of the Advancement of Women Act, enacted under the Second Equality Act, provides that, as long as women are employed in individual areas in smaller numbers than men, government departments are required to increase the proportion of women in supervisory and managerial positions as civil servants, judges, employees and workers, and in the promotion or transfer of women to higher level positions. Section 8 of the Second Equality Act also requires departments to promote further job training for women, and provides for special accommodations to be made to facilitate the participation of workers with family responsibilities in additional training. The Government indicates, however, that the Act for the Advancement of Women and the Reconciliation of Family and Work in the Federal Administration and in the Federal Courts, which came into effect under the Second Equality Act, needs to be applied more consistently. The Committee requests the Government to provide information on the impact of these legislative measures on the employment of women in higher-level positions in the federal public sector, as well as information on the measures taken and results achieved in this area at the Länder level.

3. Discrimination on the ground of political opinion. Further to its comments on the conclusions of the Commission of Inquiry, the Committee notes the Government's statement that, with regard to applicants for positions in the public service, loyalty to the Constitution must be checked in each individual case, and that activities for the Ministry of State Security or the Office for National Security of the former German Democratic Republic (GDR) can be grounds for considerable doubts about a candidate's loyalty to the Constitution or other suitability. The Government further indicates that checking must always be carried out on a case-by-case basis. The Committee notes the recent decisions from the Länder courts, which held that civil servants could not be dismissed merely because of past activities for the Ministry of State Security for the former GDR. The courts held that, for a dismissal to be upheld, the individual's past involvement with the Ministry of State Security must have been of a serious nature. The Committee also notes from the decisions that the courts may be disinclined to uphold the dismissal where the individual worked merely as an informal agent, or where there was a long time interval between the past activities and the termination. The Committee notes that these decisions continue to be in accordance with the proportionality rationale proposed by the ILO Commission of Inquiry on the application of this Convention and this Committee on the application of Annex I of the Reunification Treaty. The Committee would be grateful if the Government would continue to provide information on any new court decisions involving terminations or failure to hire a candidate for the public service on the basis of his or her past political activities.

4. The Committee notes the Government's statement that the decision issued by the State Government of Mecklenburg-Vorpommern on 23 February 1999, concerning screening of candidates for civil service positions, could affect the implementation of the Convention's prohibition of discrimination on the ground of political opinion. The Committee notes that the scope of the posts to which the decision applies is quite broad. The decision provides that the possibility that an applicant may have worked officially or unofficially for the Ministry of State Security or the Office for National Security of the former GDR will be considered during the recruitment process, although due consideration must be given to the wider circumstances of a given case. The decision limits the inquiry to activities for the named institutions, which began on or after 31 December 1980, or which began before 31 December 1980, but continued after that date. The Committee notes from the decision that vetting of first-time candidates through the federal commissioner responsible for such matters, entailing an inquiry into past activities, will be carried out where there is concrete evidence of collaboration with the former GDR institutions mentioned, in the case of appointments to higher grades in the civil service, or appointments to sensitive areas, where the position in question imposes particular requirements of trust, or if the position in question is an especially important one. In the latter case, the inquiry need not be time restricted. The Committee asks the Government to provide information on the number of applicants refused employment on the basis of these screening guidelines, and the right of appeal available to the persons affected.

5. Enforcement of equal opportunity provisions. With respect to its previous comments, the Committee notes with interest the Act Amending the Civil Law Code and the Act on the Labour Court, which entered into force on 3 July 1998. The report reflects the fact that the Parliament took into account the verdict of the European Court of Justice of 22 April 1997 (Az. C-180-95) and modified the national legislation (in respect of section 611(a) of the Civil Code) to bring the provisions on compensation for damages into conformity with the European law. Noting the Committee's earlier concern over the limitations previously placed on damages, it asks the Government to provide information on the application in practice of the new legislation and its impact on eliminating discrimination in employment and promoting equality in employment and opportunity.

The Committee is addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

1. Discrimination on the grounds of race, colour and national extraction. In its previous direct request, the Committee had asked for information on the training and employment opportunities for German citizens of different ethnic origins, such as the Danish and Sorbian minorities and the Sinti and Rom. The Committee notes from the Government's reports that, while it is difficult to collect data on the number of minorities because declarations as to national origin are voluntary, both at the federal and Länder levels, a large number of legislative initiatives and practical activities for these groups, and for the Frisian minority, have been undertaken to encourage their rights to language, education, national identity, cultural independence and political participation. The Committee observes that much of this detail is also contained in government reports to United Nations treaty bodies, such as the Committee on Economic, Social and Cultural Rights (UN document E/1994/104/Add.14 of 17 October 1996) and the Committee on the Elimination of Racial Discrimination (UN document CERD/C/299/Add. 5 of 21 October 1996), as well as to the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (UN document E/CN.4/1996/72 of 15 February 1996). It requests the Government to continue to provide such information in future reports, where possible with statistical data relating to the employment profile of these groups.

2. Discrimination on the ground of sex. The Committee had requested information on women's access to training and on the number of trained women who actually got jobs once qualified. According to the Government's reports, data from the Federal Statistical Office for 1994 and 1995 show that women accounted for almost 42 per cent of newly concluded training contracts, but that over 75 per cent of female apprentices were trained in commercial and services sectors, with only 8 per cent of all the female intake receiving training in traditional "male" occupations. According to an analysis of the database of the Research Institute for Labour Market and Professions (IAB) of the Institute of Labour, only ten occupations -- mostly technological in nature -- are dominated by men: both males and females tend to choose occupations of traditional male and female dominance respectively although the tendency is stronger for men: for example, in 1995, 58.4 per cent of young women in the new Länder entered female-dominated occupations (42 per cent in the old Länder) and 76.6 per cent of young men entered those where males dominated (68.6 per cent in the old Länder). Although no statistics are collected on the number of women who obtain jobs after completing their training, relevant information can be gleaned from the surveys carried out by the Federal Vocational Training Institute: in 1995, for example, these showed that 71 per cent of persons trained in enterprises were taken on in their chosen occupation immediately at the end of their apprenticeship, but that the number of job offers made to male-dominated industrial/technical occupations was higher than in female-dominated service sector occupations. The Government points out that unemployment data also shed light on the actual job situation of trained women: for example, in 1995-96 the number of women who sought vocational counselling amounted to about half of all job advice seekers. The Government states that vocational counsellors are actively seeking training positions in enterprises for women and the broadening of occupational choice by wider training opportunities. In July 1996, the federal Government and new Länder and Berlin concluded an agreement known as the "Action Programme for Training Positions in the East" aimed at creating many new training places at workplaces through 1997. The Committee requests the Government to inform it of the activities and successes of its various initiatives in reducing sex-segregated training for both men and women, for example by including sensitization courses to school-leavers about the possibilities of choice and jobs outside stereotyped occupations.

3. Enforcement of equal employment provisions. The Committee notes that, following a decision of the European Court of Justice on 22 April 1997, concluding on the ineffectiveness of compensation for damage under the Equal Treatment Act, the Government is preparing a Bill to ensure conformity of the national legislation with the European law. The Committee requests to be kept informed of progress towards adoption of any new legislation which strengthens enforcement of the provisions designed to eliminate discrimination in employment and promote equality in employment and opportunity.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

1. The Committee takes note of the Government's reports and of the numerous documents annexed to them.

2. Discrimination on the ground of sex. Further to its previous observation requesting information on the implementation (in access to vocational training, access to employment and terms and conditions of employment in the federal administration) of the Second Equality Act, in particular on section 14 (three-yearly report to be tabled in Parliament documenting progress on the situation of women in the federal administration and public undertakings), the Committee notes that the first report under section 14, for the period 1996-98, will be transmitted as soon as it is available. It notes with interest from the Government's third report (1992-94) on the situation of women in the federal administration (presented to Parliament under the former legislation in November 1996) that, while the actual total number of civil servants has diminished, the trend to increased percentages of women in higher grades and posts of responsibility continues. At the same time, it notes with concern that, while the actual number of public officials has slightly increased, the percentage of women in the highest band (Höherer Dienst) has dropped from 51.4 per cent in 1990-91 to 39.1 per cent in 1993-94, implying that men are filling the new higher level public employee (Angestellte) posts. The third report shows that family-friendly policies continue to expand with a view to enabling women's career progression, and states that the next report will be tabled in accordance with the Second Equality Act. The Committee looks forward to receiving, with the Government's next report, the document tabled in Parliament on the impact of the Second Equality Act and any other information on its application in practice.

3. Following the European Court of Justice decision in Kalanke v. City of Bremen, the Committee had requested information on how the ruling affected government policies in the area of affirmative action for the elimination of discrimination against women. It notes the Government's statement that there has been no impact on its policies since the Second Equality Act contains no provisions on automatic quotas for women, which was the subject-matter of that case. Moreover, the Government confirms that other affirmative action measures are not affected and remain both necessary and possible.

4. Discrimination on the ground of political opinion. Following up on the recommendations of the 1987 Commission of Inquiry report and the provisions in Annex I of the German Reunification Treaty, the Committee has been requesting the Government to ensure that, in relation both to applicants for government jobs and stability of employment in the public service, particularly for teachers, legislative requirements of questioning as to faithfulness to the free and democratic order be applied restrictively having regard to the nature of the job. The aim of this request was to ensure that restrictions on employment in the public service correspond to the inherent requirements of particular jobs within the meaning of Article 1, paragraph 2, of the Convention, or can be justified under Article 4. The Committee notes that the Government supplies data on the number of terminations made under the provisions of Annex I and appeals lodged against them in the various Länder, which appear to have mixed results (roughly two-thirds of the appeals upheld the terminations and one-third of the appeals were dismissed, with a number of agreed settlements or withdrawals).

5. The Committee notes with interest from the Government's most recent report that, on 8 July 1997, the Constitutional Court delivered four fundamental decisions regarding special cases of dismissal pursuant to the provisions of the Reunification Treaty, upholding their constitutionality. It is in principle admissible to ask questions regarding the individual's previous activity in the state security apparatus, but situations should be examined on a case-by-case basis. Activities "in the distant past" (in the cases in question, activities which ended before 1970) could have no or very little relevance to the current employment relationship or candidature. In this connection, the Committee had also asked for information on the impact of the European Court of Human Rights decision in Vogt v. Germany on the re-employment opportunities of civil servants dismissed under these provisions, provided that they satisfy the recruitment and qualification requirements. It notes that, according to the Government, this case gave important guidance on the principle of proportionality (whether removal from service of a permanent civil servant is proportional or not depends on the circumstances of the individual case) and that all other cases of dismissed teachers are closed. Its impact can be seen in the jurisprudence of the Land-level Labour Court of Chemniz to the effect that "a dismissal from the public service can no longer be based on the holding of specific functions, for instance in the former German Democratic Republic. Account must also be taken rather of the service record of the dismissed person as well as any possible orientation following the collapse of the Socialist Unity Party, towards the free political order".

6. The Committee welcomes these jurisprudential developments, which reflect the recommendation of the Commission of Inquiry and its own previous comments, to the effect that it is important not to attribute excessive importance to activities undertaken at a time when applicants for civil service jobs were not bound by any public service relationship and to provide an opportunity for them to demonstrate, once they are in such a relationship, that they will respect the obligations attached thereto. The Committee would appreciate receiving information from the Government in future reports on any new court challenges to refusal to hire or to termination of employment in the public service on the basis of past political activities.

7. Observing that criteria similar to that for "extraordinary termination" of the work relationship set out in Annex I to the Reunification Treaty had been adopted in various Länder in the form of announcements and guidelines for civil service employment, the Committee had also requested the Government to supply information on how the specific Land-level texts are being implemented in practice. It notes the Government's indications that each case is examined on an individual basis, and that the Länder themselves supply general information on the procedure for interviews. The Committee asks the Government to inform it, in future reports, of any changes to the Länder announcements and guidelines that might affect the application of the prohibition on discrimination in employment on the basis of political opinion contained in the Convention.

8. The Committee is addressing a request directly to the Government on other matters.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee notes the Government's report, in particular the information concerning the entry into force on 1 July 1994 of the Working Time Act, under which prohibitions and restrictions in respect of women working in the coal and steel industry, the building trade and vehicle manufacture, as well as the ban on night work, have been abolished.

2. Discrimination on the grounds of race, colour and national extraction. The Committee takes note of the information supplied in the Government's report on training for foreigners, but would recall that it is interested in receiving indications of any measures being taken to foster understanding and tolerance, thereby promoting equality in employment, for German citizens of different ethnic origin. The Committee observes, for example, that in its report on the United Nations Convention on the Elimination of All Forms of Racial Discrimination, the Government describes: (1) activities for the Danish minority in Schleswig-Holstein; (2) the creation and activities of the "Foundation for the Sorbian People", which promotes equality for this minority in the Länder of Brandenburg and Saxony; and (3) schooling, training and cultural activities for the Sinti and Rom (UN document CERD/C/226/Add.7 of 12 March 1993). The Committee would appreciate receiving recent information of this kind, together with statistical data on the proportion of ethnic minorities in schooling, training, and employment, in the Government's next report.

3. Discrimination on the ground of sex. The Committee notes that, according to the report, the appointment of women in the highest federal administrative bodies and subordinate departments has been given effect through the amended Guideline concerning women's advancement of October 1990 and the new Second Equality Act referred to in the observation under this Convention. It welcomes the Government's initiative called "Women give technology a new impetus" and the continuing vocational training work of the Federal Labour Institute towards extending the range of career options for young women, since around half of all persons seeking such counselling in both the old and the new Länder are women and girls.

4. The Committee notes, however, that access to training posts and to jobs in the private sector continues to be a problem for young women, particularly in the new Länder. Noting that the "Federal Initiative East" targets training for the service industry and commerce and that around 70 per cent of its external training places had been taken by girls at April 1994 and that a new special programme was introduced in 1994 (with joint federal, Länder and European Social Fund financing) so as to provide further training opportunities for young women, the Committee requests the Government to provide, in its next report, data on the number of women accepted for training in both "traditional" occupations and non-traditional trades, and on the number of trained women that actually get jobs once qualified.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

1. The Committee takes note of the Government's report and its annexed Länder higher court decisions and legal texts.

2. Discrimination on the ground of sex. The Committee notes with satisfaction the adoption, and entry into force on 1 September 1994, of the Act on the advancement of women and the compatibility of marriage and occupation in the federal administration and in the federal courts (known as the Second Equality Act). In particular, the Committee notes that federal administrative bodies and public undertakings must: issue a plan for the advancement of women every three years; compile annual statistics on the numbers of men and women in a number of areas for submission to the supreme federal authorities; draft vacancy advertisements in gender-neutral terms unless one or the other sex is an indispensable precondition for the job advertised; increase the proportion of women in under-represented areas subject to the precedence of suitability, capability and occupational performance; encourage women's further training to facilitate career advancement; where there is a regular staff of at least 200 persons, have women's representatives (or a "confidential adviser" if no such representative) to promote and supervise the application of the new Act, including the lodging of complaints with the directorate. The Act also amends certain legislation applicable to both the public and the private sectors: it clarifies the extent of monetary compensation in civil actions based on sex discrimination; and introduces protection against sexual harassment at the workplace including a complaints procedure and the need to include sexual harassment sensitization in vocational and further training courses offered to public servants.

3. Noting that section 14 of the Act provides that the Government shall submit to Parliament every three years a progress report on the situation of women in these administrations and the courts covering the implementation of the Act, the Committee requests the Government to supply a copy of the first report when due in 1997. In the meantime, the Committee requests the Government to inform it, in its next report, of the impact of this legislation on the promotion of equality between the sexes in access to vocational training, access to employment, and terms and conditions of employment in the federal public sector, and of any cases reported under the sexual harassment provisions.

4. The Committee also notes the decision, on 17 October 1995, of the European Court of Justice in the case of Kalanke v. City of Bremen, in which the Court found that national rules which automatically give women priority for promotion where candidates of different sexes are equally qualified go beyond promoting equal opportunities and overstep the limits of the exception in article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion. The Committee notes that the relevant legislation contained an automatic and rigid quota of 50 per cent to be applied across all occupations including all educational and qualification levels. The Committee also notes that, in that case, the man and woman concerned had equal qualifications. Please indicate how this ruling has affected the Government's policies in this field and any action which may be proposed in respect of it.

5. Discrimination on the ground of political opinion. The Committee recalls the recommendations of the 1987 Commission of Inquiry that the measures relating to the civil service's duty of faithfulness to the free democratic basic order be re-examined, so that only such restrictions on employment in the public service are maintained as correspond to the inherent requirements of particular jobs within the meaning of Article 1, paragraph 2, of the Convention or can be justified under Article 4. In its most recent observation on this point, the Committee asked the Government to supply information on any cases in which a public official had been dismissed or an applicant denied employment based on breach of the duty of faithfulness; and given that certain Länder had abolished systematic inquiries into the loyalty of applicants for public service jobs but still required public officials to sign the declaration of loyalty, the Committee asked for copies of any directives showing the criteria used. The Government reports that the inquiries have now been abolished in all the old Länder and at the federal level, but that applicants are instructed on the principle concerning loyalty to the Constitution and must sign the declaration. In Bavaria, the Land Government's Announcement of 3 December 1991 contains guidelines on service loyalty requirements with the declaration as an annex and in that Land, between 1 July 1990 and 30 June 1994, nine applicants were rejected for insufficient loyalty, five legal trainees who were refused the status of civil servant were nevertheless allowed to complete their training, and there were no dismissal cases.

6. Moreover, it takes note of the decision of 26 September 1995 of the European Court of Human Rights in the case of Vogt v. Germany which held that the Land of Lower Saxony had breached the European Convention on Human Rights when it dismissed a permanent civil servant (who was mentioned in the ILO 1987 Commission of Inquiry report on this Convention) from a teaching post in the 1980s because she was a Communist Party member. In that case, following the 1990 repeal of the Land legislation in question (Decree on the employment of extremists in the Lower Saxony civil service) and the issuing of regulations to deal with earlier cases of political discrimination, Ms. Vogt was reinstated in her post as a teacher for that Land's education authority. The Committee requests the Government to inform it of the repercussions of this decision on the employment or re-employment opportunities of dismissed civil servants, provided that they satisfy the recruitment and qualification requirements.

7. The Committee has also been examining for a number of years the discriminatory nature of paragraphs 4 and 5 of Annex I of the German Reunification Treaty, Chapter XIX, section III, which had allegedly been used to dismiss public servants - in particular teachers - of the former GDR on the ground of their political opinion and activities. Paragraph 4 of the Treaty provides, inter alia, that ordinary termination of a work relationship in the public service is permissible if the worker does not meet the requirements, owing to inadequate specialist qualifications or personal unsuitability. Paragraph 5 provides that extraordinary termination of the work relationship is permissible based on serious reasons which exist when the worker: (1) has violated the principles of humanity or of the rule of law, especially the human rights guaranteed in the International Covenant on Civil and Political Rights or has violated the principles contained in the Universal Declaration of Human Rights; or (2) has been active for the former Ministry for State Security or the Department of National Security, and a continuation of the work relationship thereby appears unacceptable. The Committee notes with interest the Government's confirmation that paragraph 4 ceased to have effect as of 31 December 1993 and that there have been no dismissals under that provision subsequently.

8. The statistics supplied by the Government for paragraph 4 dismissals in the new Länder when it was in force show that: in Mecklenburg-Western Pomerania there were 1,090 notices of dismissal; in Saxony, there were about 4,800 notices of dismissal; in Brandenburg, 456 notices. It also notes from the copies of appeal court decisions supplied that, in some cases, dismissal under paragraph 4 was confirmed on the basis that a liberal constitutional state could not tolerate former Communist Party and state functionaries as its representatives unless they placed their dissent on record or relinquished their position of the time, thereby indicating that they had severed their links at that time with the former regime. In other cases the dismissal was revoked given that the facts proved the personal suitability of the public servant for the current post. The Committee would appreciate being kept informed of the number of appeals which succeed or fail in these, and in other new Länder.

9. Regarding paragraph 5's provision of extraordinary termination of the work relationship for serious reasons when the worker: (1) has violated the principles of humanity or of the rule of law; or (2) has been active for the former Ministry for State Security or the Department of National Security, the Committee recalls its hope that use would be made of this provision only in accordance with Article 1, paragraph 2, or Article 4, of the Convention. The Committee notes the Government's repeated assertion that this provision does not contravene the Convention and that the Government relies on Article 1, paragraph 2, of the Convention, arguing that persons who had supported the former unjust system are not suitable for employment in a state under the rule of law and the Convention should not be used to protect them. The statistics provided show that: in Mecklenburg-Western Pomerania there have been 512 dismissals; in Saxony, 860; in Brandenburg, 439. From the appeal court ruling supplied it appears that the paragraph 5 dismissal was upheld given the inherent requirements of the post. The Committee would again appreciate being informed of the outcome of any pending appeals.

10. The Committee recalls in this connection the Commission of Inquiry's recommendation that it is important not to attribute excessive importance to activities undertaken at a time when applicants were not bound by any public service relationship and to provide an opportunity for them to demonstrate, once they are in such a relationship, that they will respect the obligations attaching thereto.

11. With regard to its request for information on any programmes for vocational training or retraining of officials who had been dismissed from public service as a result of paragraphs 4 or 5 of Annex I of the Reunification Treaty, the Committee notes that the Government provides a copy of the Land of Brandenburg's directives for the granting of "interim assistance" for training and for establishing a means of livelihood for such persons; whereas it states that three Länder (Mecklenburg-Western Pomerania, Saxony and Thuringia) have announced that such measures have not been introduced. The Committee asks the Government to inform it of any developments in the approach of these Länder to this issue.

12. Concerning the old Länder in the western part of the country where similar criteria to paragraph 5 of Annex I of the Reunification Treaty have been adopted in the form of announcements and guidelines for civil service employment, the Committee had requested more information on the application of the Bavarian Announcement of 3 December 1991 and examples of other recent texts of other Länder, including the questionnaires which civil servants or applicants were required to sign. The Committee notes from the various texts provided (Baden-Wurtenburg, Bavaria, Hesse, Mecklenburg-West Pomerania, Rhineland-Palatinate, Saxony, Schleswig-Holstein and Thuringia) that civil service applicants are to be informed in writing of the obligation of allegiance to the Constitution, and the authority responsible for appointments must proceed to establish the allegiance, failing which, based on the facts available or the applicant's refusal to sign the declaration of loyalty annexed to the written notice, the applicant shall be refused employment. According to some of the texts, for applicants from the new Länder, the examination of constitutional allegiance requires additional verification of: (1) whether they were involved in violations of the principles of humanity or the rule of law; (2) whether they carried out official or unofficial functions for the Ministry of State Security or the Department of National Security; and (3) whether they had held senior posts in the former GDR system in particular in the Socialist Unity Party (SED) and in mass organizations linked to political objectives.

13. The Committee would appreciate receiving information on how these various state-level texts are being implemented in practice so that discrimination on the basis of political opinion is not possible both in entry to the Länder public services and in the terms and conditions of employment of civil servants.

14. The Committee is addressing a request directly to the Government on other points.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the information supplied in the Government's report and appended documentation in reply to its previous observation and direct request.

Discrimination on the ground of political opinion

Public officials from the former German Democratic Republic (GDR)

1. The Committee recalls that the World Federation of Teachers' Unions (FISE) alleged that personnel in the public service education system in the former GDR had been arbitrarily dismissed from their teaching posts in violation of the Convention. From the documentation submitted by FISE detailing individual cases, it appeared that the officials in question had been dismissed or given notices of dismissal pursuant to the German Reunification Treaty, Chapter XIX, Section III, Annex I, paragraphs 4 or 5. The Committee further recalls that the Government had replied that these paragraphs established legal grounds for the dismissal of public servants of the former GDR. Paragraph 4 of the Treaty provides, inter alia, that ordinary termination of a work relationship in the public service is permissible if the worker does not meet the requirements, owing to inadequate specialist qualifications or personal unsuitability. Paragraph 5 provides that extraordinary termination of the work relationship is permissible based on serious reasons which exist when the worker: (1) has violated the principles of humanity or of the rule of law, especially the human rights guaranteed in the International Covenant on Civil and Political Rights or has violated the principles contained in the Universal Declaration of Human Rights; or (2) has been active for the former Ministry for State Security or the Department of National Security, and a continuation of the work relationship thereby appears unacceptable.

2. The Committee had observed that the broad bases for dismissals provided in paragraphs 4, in particular 4(1), and 5(1) and (2) did not appear to lay down sufficiently precise criteria to ensure that there was no discrimination on the ground of political opinion. It also observed that the dismissals of the public servants in question appeared to be based on their former membership or position in certain political parties or organizations, and not on any conduct falling within the scope of what should reasonably be considered as an inherent requirement of the profession of teaching. The Committee accordingly had previously requested the Government to re-examine its application of paragraphs 4 and 5 of Annex 1 to the Reunification Treaty in order to ensure that only such restrictions on employment in the public service would be maintained as correspond to the inherent requirements of the job. It also requested the Government to provide statistics regarding the number of public officials, including teachers, who have been dismissed from their posts in the new Länder following reunification, the criteria applied, the procedural protections available and the rights of appeal.

3. In its latest report, the Government denies that political opinion has played a role in the dismissal of teachers following reunification. According to the Government, teachers who were dismissed had proved themselves to be unsuitable for continued teaching because they actively contributed, in the former GDR, to supporting the unjust regime to the disadvantage of the children entrusted to them, and to the disadvantage of their parents, in a way that exceeded their duties as public servants (for example: schools were intended to indoctrinate students; teachers had the task of assuring the future military generation; the school management had to give its opinion on applications made by parents for travel; the school management formed part of the reporting apparatus of the Ministry of State Security; teachers had to obtain information from the students about the political attitudes of their parents).

4. With respect to the application of paragraph 5 of Annex I to the Reunification Treaty, the Government emphasizes the extraordinary nature of the provision, and states that it may be implemented only for important reasons on the basis of proof in individual cases. As for the application of paragraph 4, the Government points out that the right of ordinary dismissal for, inter alia, deficient personal suitability, provided by this clause, ceased to have effect on 31 December 1993. According to the Government, prior "political incrimination" had been a reason for deeming a public official of the former GDR unsuitable under this section. In cases involving prior political incrimination, the Government considered that the more the person, by the assumption of certain functions, had identified himself with the unjust regime, the more incriminated he was, and the less reasonable it was for him to hold a position in the current administration.

5. The Government describes the practical implementation of paragraph 4 with reference to the new Land of Thuringia, including the guidelines issued on indicators of personal unsuitability for service as a teacher. According to the Government, in every case of ordinary or extraordinary dismissal, verification of the personal suitability for further employment, or that it is unreasonable to continue the employment, is determined by a hearing of the person concerned. The Government reports that, in the Land of Thuringia, it had to verify the suitability of a total of 36,000 teachers and educators from the former GDR after unification. Following several levels of hearings and personal interviews, 1,406 or 3.91 per cent were dismissed on account of personal unsuitability, under paragraph 4.

6. The Government reports that persons who have been dismissed have the right to bring their cases before the labour courts, the German Constitutional Court and the European Court of Human Rights. The Government also reported to the United Nations Committee on Economic, Social and Cultural Rights (UN document E/C.12/1993/SR.36, 7 December 1993) that, of the teachers who had been dismissed in Thuringia, 1,222 had appealed and 184 had accepted their dismissal. Of the appeals, 583 had been settled amicably, 87 had been retained and the remaining 736 cases were still pending. One hundred and forty individual cases concerning teachers and public servants have been accepted for consideration by the Federal Constitutional Court.

7. The Committee notes the 31 December 1993 expiration date of the right to dismiss under paragraph 4 of Annex I to the Reunification Treaty. It also notes that the majority of dismissals of public servants from the former GDR, including teachers, had been based on that provision. The Committee must once again refer to its previous comments on the imprecise criteria of paragraphs 4 and 5. In addition, it observes that the indicators contained in the guidelines on how to apply the Treaty provisions in Thuringia also place an emphasis on the official's former position or organizational affiliations rather than on individual conduct. Thus, the Committee finds that use of the guidelines as criteria upon which to base dismissals would be insufficient to protect against discrimination based on political opinion. The Committee must stress the importance it places on objective judicial review available to the public officials. It hopes that such procedural protections will ensure that the dismissals which are affirmed in the public service are only those based on each individual's failure to meet the inherent requirements of the particular job, within the meaning of Article 1, paragraph 2, of the Convention. The Committee asks the Government to confirm that the right to dismiss under paragraph 4 has in fact lapsed, to confirm that the guidelines are no longer being used to determine suitability of teachers, to provide statistical information on the number of officials who have been dismissed in the new Länder other than Thuringia, and on the appeals filed against dismissals made under paragraph 4 of Annex I to the Reunification Treaty, and to supply copies of any court decisions or other rulings issued in such matters.

8. With respect to the continued application of paragraph 5 of Annex I to the Reunification Treaty, the Committee hopes that the Government will ensure that discrimination in dismissals and employment criteria based on political opinion does not occur in violation of Article 1, paragraph 1, of the Convention. It further hopes that only such restrictions on employment in the public service in the new Länder are maintained, as correspond to the inherent requirements of the job, within the meaning of Article 1, paragraph 2, or as can be justified under the terms of Article 4 of the Convention. The Committee requests the Government to keep it informed of any dismissals or refusals to hire based on the application of paragraph 5, in particular subsection 2, of any guidelines developed by the new Länder to implement the section, of the interpretation given to the provision concerning who has been active for the Minister of State Security, as well as of any court decisions in which the application of paragraph 5 has been challenged.

9. Concerning the old Länder in the western part of the country, the Committee notes that section I.2.1.3 of the Bavarian Government's Announcement of 3 December 1991 provides that no one is fit for public service who has violated the principles of humanity or rule of law, or who has been active for the Minister of State Security or the Office of National Security in the former GDR. The Committee notes the similarity of this provision to paragraph 5 of Annex I to the Reunification Treaty. It requests the Government to indicate the manner in which this provision is applied and the interpretation given to the phrase "who has been active for the Minister of State Security". It also requests the Government to indicate whether any other old Länder have adopted similar policies towards former GDR public officials and, if so, to provide the information requested above.

10. The Committee also notes that section II.1 of the Bavarian Announcement of 3 December 1991 provides that an applicant for public service must fill out the questionnaire in Appendix 2 and sign the declaration in Appendix 3. The Committee requests the Government to supply copies of the questionnaire and the declaration and the list of the most important extremist organizations or extremist-influenced organizations, and of the most important mass or social organizations, of the former GDR up to 1989-90, to which the Announcement refers.

11. The Committee requests the Government to indicate any programmes of vocational training or retraining, or other measures to facilitate employment, which have been provided to those officials who have been dismissed from public service, as a result of the application of paragraphs 4 or 5 of the Annex to the Reunification Treaty, and the results of such programmes.

Duty of faithfulness

12. Recalling its previous comments concerning the follow-up to the recommendations of the 1987 Commission of Inquiry, the Committee notes that, while systematic inquiries concerning the loyalty of applicants for positions in the public service have been abolished in Baden-Württemberg and the Rhineland-Palatinate, public officials are still required to sign the declaration of loyalty. The Committee therefore continues to ask the Government to supply copies of any directives issued by the Länder or federal Government on this topic, and to supply information on any cases in which a public official has been dismissed or denied employment based on breach of the duty of faithfulness.

Equality irrespective of race and national extraction

13. Noting the information on the provision of vocational guidance and training for foreigners, the Committee again requests the Government to provide information on the policies, programmes or other measures taken or contemplated with a view to eliminating discrimination and promoting equality of opportunity and treatment of all persons in employment and occupation irrespective of race, colour or national extraction. It would also welcome information on any measures taken to foster understanding and tolerance among the various ethnic groups of the population.

Equality between men and women

14. The Committee notes with interest the adoption, on 13 July 1993, of the Act on Uniformization and Flexibilization of the Legislation on Working Time (the Working Time Act), which provides for the promulgation of new regulations to replace the prohibition of, and the restriction on, the employment of women in various jobs and sectors, such as in the building industry and on vehicles. It hopes that the new regulations will fully apply the principle of equality of opportunity and treatment, and that any special measures of protection will be adopted after consultation with the representative employers' and workers' groups in accordance with Article 5 of the Convention. The Committee asks the Government to provide information on the contents of such regulations, and to supply copies once they are issued.

15. The Committee notes with interest that commissioners for women's affairs have been appointed in all the highest federal administrations. It would be grateful if the Government would provide information on the duties and activities of these commissioners and an assessment of the impact of their work in relation to promoting the principle contained in the Convention.

16. From the detailed information supplied by the Government, the Committee notes the efforts undertaken in the fields of education, training, occupation and employment to help broaden the spectrum of occupational choice for women workers in both the new and the old Länder. It also notes, however, that in spite of these efforts, the supply of training posts in undertakings lags behind demand, particularly for young women in the new Länder. The Committee requests the Government to continue to provide information, including statistical data comparable by Länder, if possible, on the various measures taken to promote equal opportunity for women in employment through vocational guidance, training and placement, and in particular on the various measures taken to assist young women in the new Länder to obtain training posts.

17. Noting that several drafts of a law to achieve equality between men and women have been prepared, the Committee requests the Government to indicate whether this law has been adopted and, if so, to supply a copy of the text with its next report.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. The Committee notes from the Government's report that pursuant to Article 30, paragraph 1, subparagraph 1, of the Treaty of Reunification, which calls for new and uniform regulation of working time, including Sunday and holiday work and special protection of women, a draft law is under preparation which will cover employment of women in particular areas and will abolish prohibitions or limitations on work by women when these are not necessary for the avoidance of sex-specific risks. The Committee hopes the new legislation will be in conformity with the requirements of the Convention concerning equality of opportunity and treatment with respect to access to employment and to particular occupations and in terms and conditions of employment, and that any special measures of protection will be only adopted after consultation with representative employers' and workers' groups in accordance with Article 5 of the Convention.

2. The Committee notes the provision of vocational guidance and counselling services and vocational training programmes to girls and women with a view to broadening their occupational choices and enhancing their employment prospects. According to the Government's report, some progress in diversifying the occupations in which women are employed has been achieved, albeit at a very slow pace. The Committee requests the Government to continue to provide information, including statistics, on the various measures taken to promote equal opportunity in employment through vocational guidance and training and in particular on the various measures taken to assist young women in the new Länder in obtaining training placement.

3. The Committee once again requests the Government to provide information on the practical application of the guidelines concerning the advancement of women in the federal administration and to forward a copy of the second report covering the period 1989-91 to which the Government refers in its report.

4. The Committee notes with interest the measures taken to encourage women in the sciences and the corresponding emphasis on increasing the proportion of women in higher education, post-doctoral work and professorships. It requests the Government to supply copies of the report on the "Encouragement of Women in the Area of Science" scheduled to be completed at the end of 1993, the report on present developments and regulations in this area and the evaluation report on the measures taken for the encouragement of women within the second special university programme.

5. The Committee notes the information on the voluntary initiative taken by private enterprises to promote women's access to employment and the role undertaken by the Federal Ministry for Women and Young Persons to encourage acceptance in the private sector of promotional measures for women workers. Noting the 3.6 per cent increase from 1982 to 1989 in women holding managerial positions in the private sector, the Committee requests the Government to continue to provide statistical information on the percentage of women holding such positions and on the measures taken to increase this percentage particularly by the Government in seeking the cooperation of employers' and workers' organizations and other appropriate bodies in promoting equal employment opportunity and treatment between women and men in the access to positions at all levels of decision-making in the private sector.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Communications of FISE concerning discrimination on the ground of political opinion

1. The Committee notes the information contained in the report of the Government for the period ending 30 June 1992. It has also given further consideration to the communications received in February 1991 and December 1991 from the World Federation of Teacher's Union (FISE) concerning the measures taken in regard to personnel in the public service education system in the former German Democratic Republic. The Committee notes that copies of the aforementioned communications had been sent to the Government to enable it to present comments thereon and that in its 1992 observation the Committee had requested the Government to provide detailed information on a number of points raised in the communications.

2. The Committee recalls that in its communications FISE alleged that personnel in the public service education system in the former GDR, through application of the policy which had already been applied in the Federal Republic of Germany, had been arbitrarily dismissed from their teaching posts in violation of the Convention. Personnel in the public service education system in the former GDR were required to complete questionnaires concerning, among other things, their past positions, past national decorations received, whether they had been reproached or suspected of having violated fundamental principles of humanity or of States' rights and whether they were willing to commit themselves to the fundamental liberal-democratic system of the Federal Republic of Germany and to defend its laws. Dismissals of such personnel might result from the nature or content of answers to the questionnaire or from a refusal to answer it.

3. The Committee notes from the documentation submitted by FISE supplying details on 11 individual cases that the officials in question were nine teachers who had been dismissed or had been given notices of dismissal from their positions pursuant to the German Reunification Treaty, Chapter XIX, Section III, Annex 1, paragraph 4 and paragraph 5 (in two cases) and two officials who had been refused appointment to teaching/administrative positions. The information further indicates that most, if not all, of the public officials had filled out questionnaires prior to their termination. There was no indication in the documentation that any of the individuals in question replied negatively to the inquiry on whether they would commit themselves to the fundamental liberal-democratic system of Germany and defend its laws. The reasons given for the dismissals, notices of dismissals and refusal to appoint were based on former membership and/or position in certain political parties or organizations including positions held as President of the Union of Teachers of the GDR, member of municipal council, school inspector and other more general reasons such as unsuitability to teach in a democratic society. In the two dismissals made pursuant to paragraph 5, one case was based on former employment with the Ministry for State Security and the other gave no reason in the letter of dismissal.

4. Based on the aforementioned information, the Committee, in its 1992 observation, had requested the Government to provide detailed information on the number of public service officials, including teachers, who had been dismissed from their posts following reunification, the criteria applied in determining removal, as well as the procedural protections applicable and followed, and the manner in which the information collected from the personnel questionnaires was reviewed and used to condition continuation of employment in the public service, including teaching.

5. The Government has replied that no figures are available on the number of workers who have been discharged from the public service in the new Länder. It denies any question of arbitrary dismissal of public servants of the former GDR citing the provisions of the German Reunification Treaty, Chapter XIX, Annex I, Topic A, Section III, No. 1, paragraphs 4 and 5, which provide special legal bases for the termination of work relationships in the public administration in the Acceded Area (former GDR). The Government states that the provisions of paragraphs 4 and 5 take account of the special situation at the time of radical change in the State, and are indispensable for the creation in the Acceded Area of a constitutional and effective administration. The Government states that paragraph 4 of the Treaty provides that regular termination of a work relationship in the public service is permissible, if: (1) the worker does not meet the requirements, owing to inadequate specialist qualification or personal unsuitability; or (2) the worker can no longer be employed, owing to lack of necessity; or (3) the former appointment is abolished without replacement or, if the appointment is combined, incorporated or seriously altered, it is no longer possible to offer the previous employment or similar employment. The Government states that paragraph 5 of the Treaty provides that extraordinary termination of a work relationship is permissible based on serious reasons which exist when the worker: (1) has violated the principles of humanity or of the rule of law, especially the human rights guaranteed in the International Covenant on Civil and Political Rights of 19 December 1966 or has violated the principles contained in the Universal Declaration of Human Rights of 10 December 1948; or (2) has worked for the former Ministry for State Security or the Department of National Security, and a continuation of the work relationship thereby appears unacceptable. The Government states that termination under paragraph 5 always implies that an individual investigation has been carried out and that normal recourse to law, to appeal against termination, is available to the person concerned.

6. The Committee regrets that no figures are available on the number of workers who have been discharged from public service in the new Länder following reunification. The Committee has been informed that a number of individual communications alleging arbitrary dismissal on the basis of the Reunification Treaty have been received by the Office, but due to the individual nature of the complaints the Committee was not in a position to examine this information. The Committee also notes that the Government failed to provide the requested information on the criteria used to determine applicability of the provisions authorizing dismissal, the procedural protections available and the manner in which the information collected from the personnel questionnaires is reviewed and used to condition continuation of employment in the public service. In fact, no mention is made of the questionnaires in the Government's report.

7. In order for the Committee to determine the precise effect of the provisions of paragraphs 4 and 5 in Annex I to the Reunification Treaty, it must draw attention to how these provisions are being applied in practice to condition employment in the public service and how this application relates to the requirements of the Convention. In Article 1, paragraph 1, of the Convention, the term discrimination includes any distinction, exclusion or preference made on the basis of specified grounds including political opinion, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. With respect to the protection of discrimination on the ground of political opinion, the Committee has stated in paragraph 57 of its 1988 General Survey that "the Convention implies (protection) in respect of activities expressing or demonstrating opposition to the established political principles - since the protection of opinions which are neither expressed nor demonstrated would be pointless ... The protection of freedom of expression is aimed ... at giving (an individual) an opportunity to seek to influence decisions in the political, economic and social life of his society". The Committee observes that to be meaningful the protection of political opinion must therefore extend to the collective participation in political parties and organizations.

8. In determining whether there is discrimination under the Convention, account must be taken of Article 1, paragraph 2, concerning the inherent requirements of a particular job, and of Article 4 concerning measures regarding activities prejudicial to the security of the State. It does not appear to the Committee that issues concerning the security of the State are raised in the communications of FISE as they deal with employment in teaching and lower-level administrative positions, therefore the Committee finds it unnecessary to examine the matter in light of the requirements set out under Article 4.

9. As regards the question of the inherent requirements of a particular job in relation to political opinion, the Committee in paragraph 126 of its 1988 General Survey stated that "although it may be admissible, in the case of certain higher posts which are directly concerned with implementing government policy, for the responsible authorities generally to bear in mind the political opinions of those concerned, the same is not true when conditions of a political nature are laid down for all kinds of public employment in general or for certain other professions: for example, when there is a provision that those concerned must make a formal declaration of loyalty and remain loyal to the political principles of the regime in power".

10. With respect to the inherent requirements of teaching positions, the Committee observes that consideration of political opinion is justified only where the opinions are in conflict with the obligations normally attached to teaching duties such as objectivity and respect for the truth, or are in conflict with or prejudice the aims and principles professed by the schools to which the officers belong, such as in an institution for religious studies. In this regard, the Committee would draw the Government's attention to the findings of the 1987 Commission of Inquiry which considered the special situation of teachers in the Federal Republic of Germany and the requirement of loyalty oaths conditioning their employment, both because the majority of cases brought to the Commission's attention concerned that profession and because of the emphasis placed by the Government of Germany on the special responsibility of teachers to uphold the free democratic basic order and on the vulnerability of pupils to be influenced by teachers. The Commission noted that only exceptionally had teachers been excluded from employment on the ground that they had tried to indoctrinate pupils or had otherwise misconducted themselves in their service. The Commission found that there could be no justification to assume that, because a teacher was active in a particular party or organization, he would behave in a manner incompatible with his duties. The Commission concluded that, in most of the cases concerning teachers brought to its attention, the measures taken in application of the duty of faithfulness to the Constitution had not in various respects remained within the limits of the inherent job requirements exception provided in the Convention.

11. The Committee observes from the information provided by FISE that the dismissals were based on the individual's former membership or position in certain political parties or organizations and not on any conduct falling within the scope of what should reasonably be considered as an inherent requirement of the profession of teaching. Teaching or administrative skills, competence or qualifications were not questioned in any of the cases. The Committee further observes that the broad bases for dismissal provided in paragraphs 4, in particular 4(1), and 5 of the Annex to the Reunification Treaty upon which the Government relies, would not appear to lay down sufficiently precise criteria to ensure that there is no discrimination on the ground of political opinion.

12. The Committee hopes that the Government will re-examine its application of paragraphs 4 and 5 of Annex 1 to the Reunification Treaty and its use of the questionnaires, and that action will be taken to ensure that only such restrictions on employment in the public service in the new Länder are maintained as correspond to the inherent requirements of particular jobs within the meaning of Article 1, paragraph 2, of the Convention or as can be justified under the terms of Article 4 of the Convention. In this respect the Committee invites the Government to refer to the considerations set out in the Recommendations of the 1987 Commission of Inquiry, paragraphs 585 to 593, based on their relevance and applicability to the recent measures taken in the public service in the new Länder following reunification. The Committee requests the Government to report on the measures contemplated or taken to ensure that employment in the public service in the new Länder will be based on the inherent requirements of the job, such as by laying down of guidelines or sufficiently precise and objective criteria. The Committee hopes that the Government will provide statistics or other available information regarding the number of public officials, including teachers, who have been dismissed from their posts in the new Länder following reunification, the criteria applied in determining removal, the procedural protections available and the manner in which the information in the questionnaires is reviewed and used to determine conditionality for employment in the public service. It also requests the Government to indicate the rights of appeal available for the decisions taken under paragraphs 4 and 5 of the Reunification Treaty.

Follow-up to the recommendations of the 1987 Commission of Inquiry concerning equality of opportunity and treatment irrespective of political opinion

13. The Committee notes that the operation of the above-mentioned paragraphs of the Reunification Treaty has been extended to the end of 1993. It understands that the relevant federal legislation establishing the duty of faithfulness to the Constitution has become applicable in the new Länder. Recalling its direct request of 1991, the Committee hopes that the Government will provide information on the measures taken with a view to ensuring equality of opportunity and treatment in accordance with the Convention in the new Länder, more particularly as regards: (a) employment in the public service in those regions; and (b) access of persons from those regions to the federal public service and to the public service of the previously existing Länder of the Federal Republic.

14. In previous comments, the Committee had requested the Government to continue to supply information on any measures taken by the federal authorities and by the Länder of Baden Württemberg, Bavaria and Rhineland-Palatinate, in response to the recommendations of the 1987 Commission of Inquiry concerning the requirement of loyalty oaths conditioning employment in the public service of the Federal Republic of Germany. The Committee notes with interest from the Government's report that the systematic inquiries concerning the loyalty of applicants for positions in the public service have been abolished in Baden-Württemberg by a directive of the Ministry of the Interior dated 27 October 1990, in Bavaria by an announcement by the Government of the State and Land of Bavaria of 3 December 1991 and in the Rhineland-Palatinate by an administrative provision of the Ministry of the Interior of 27 December 1990. As a result, the Government reports that no systematic inquiries concerning applicants have been made in Germany since 1 January 1992. The Committee requests the Government to provide copies of the above provisions and directives and to continue to supply information on the practical application of the recommendations of the Commission of Inquiry.

Equality of opportunity and treatment on the ground of sex

15. The Committee notes that a draft law to bring about the equal status of men and women is currently being prepared by the Federal Ministry for Women and Young Persons and that, according to the Government, it will further improve sanctions against discrimination on the ground of sex in appointment and promotion in employment. The Committee hopes its previous comments will be taken into consideration in the drafting of the new legislation and that the Government will supply a copy of the text upon its adoption.

Equality of opportunity and treatment on grounds of race and national extraction

16. The Committee requests the Government to provide information on the policies, programmes or other measures taken or pursued with a view to eliminating discrimination and promoting equality of opportunity and treatment of all persons in employment and occupation on grounds of race and national extraction, in regard to access to training, access to and security of employment and terms and conditions of employment.

[The Government is asked to report in detail for the period ending 30 June 1993.]

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the communications received in February 1991 and December 1991 from the World Federation of Teachers' Union (FISE), concerning the application of the Convention. Copies of these communications were transmitted by the ILO to the Government in April 1991 and January 1992. The Committee notes that the Government has not yet replied.

FISE alleges that personnel in the public service education system in the former German Democratic Republic are victims of the policy of professional bans which had been applied in the former Federal Republic of Germany. According to the information supplied by FISE, teachers have been arbitrarily dismissed from their teaching posts in violation of Convention No. 111. Personnel in the public service education system in the former German Democratic Republic are being required to complete questionnaires concerning, among other things, their past positions, past national decorations received, whether they had been reproached or suspected of having violated fundamental principles of humanity or of States' rights and whether they were willing to commit themselves to the fundamental liberal-democratic system of the Federal Republic of Germany and to defend its laws. Dismissals of such personnel may result from the nature or content of answers to the questionnaire or from a refusal to answer it.

The Committee requests the Government to forward its observations on the questions raised by the FISE so that it can examine them at its next session. In this regard, it would be grateful if the Government would provide detailed information on the number of public service officials, including teachers, who have been dismissed from their posts following the reunification, the legal basis for their removal from service, the criteria applied in determining removal as well as the procedural protections applicable and followed, and the manner in which the information collected from the personnel questionnaires is reviewed and used to condition continuation of employment in the public service, including teaching. The Committee will examine the issues raised in the communications of FISE, along with the next report of the Government at its next session.

The Committee also hopes that the next report will contain replies to the points which were raised in its observation and direct request of 1991.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

1. The Committee has noted the information supplied in the Government's last report in reply to its previous direct request on the measures taken to promote the employment of disabled persons.

2. The Committee has noted with interest the various measures taken, through information campaigns directed at parents, teachers and instructors, enterprises and girls themselves, testing of new teaching methods and materials and occupational consulting, in order to widen the occupational choices of girls and women and overcome the traditional attitudes which hinder the access of women to technically oriented occupations. The Committee has also noted that, although more than 350 occupations requiring training are available to women without restrictions, 80 per cent of all female trainees are still concentrated in 25 occupations, mostly characterised by reduced chances of obtaining employment, lower pay, less independence and limited opportunities for changes and advanced training. The Committee hopes that the next report will contain information, including statistical data, on the progress achieved in reducing occupational segregation on the labour market.

3. The Committee has noted with interest the guidelines concerning the advancement of women in the federal administration, which were approved by the Federal Cabinet on 25 September 1990. It hopes that the next report will contain information, including statistical data, on the results achieved through the practical implementation of these guidelines.

4. The Committee has noted that the information requested on the situation of women in higher scientific establishments will be forwarded in due course. It hopes that this information will be contained in the next report.

5. The Committee requests the Government, in its next report, to provide information, including statistical data, on the measures taken to promote the access of women to managerial positions in the private sector, and on the results achieved.

6. In its last report, the Government has referred to the major changes in the political situation in Europe, including the unification of the two German States. The Committee has taken note, in this connection, of the transitional provisions relating to labour matters and employment in the public service contained in Annex I, Chapters VIII and XIX, of the Unification Treaty of 31 August 1990. It would appreciate information on the measures taken with a view to ensuring equality of opportunity and treatment in accordance with the Convention in the new regions specified in Article 3 of the Treaty, more particularly as regards: (a) employment in the public service in those regions; and (b) access of persons from those regions to the federal public service and to the public service of the previously existing Länder of the Federal Republic.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

I. Equality of opportunity and treatment irrespective of political opinion

1. Further to its previous comments, the Committee notes with satisfaction the following developments:

(a) On 26 June 1990 the Land Government of Lower Saxony decided to revoke the decree against radicals and to discontinue systematic inquiry from the authority for the protection of the Constitution in regard to applicants for employment in the public service. It also decided to offer renewed opportunities of employment in the public service to persons who had previously been refused admission to such employment under the aforesaid provisions, to discontinue proceedings against officials or salaried employees in pursuance of those provisions that were still pending, and to offer reinstatement to persons against whom final court decisions of dismissal or demotion had already become effective. Following these measures, problems in the application of the Convention of the kind examined by the ILO Commission of Inquiry in its report of 1987 do not exist anymore or are in the course of being resolved in most of the Länder of the Federal Republic, namely: Berlin, Bremen, Hamburg, Hessen, Lower Saxony, North Rhine-Wesphalia, Saarland, Schleswig-Holstein.

(b) In July 1990, the President of the Federal Republic granted a pardon to Herbert Bastian (an official in the Federal Postal Service who had appeared as a witness before the Commission of Inquiry and whose dismissal had subsequently been ordered by the Federal Administrative Court, principally on account of his exercise of an elective mandate as a town councillor on behalf of the German Communist Party), enabling him to resume service as from 1 August 1990.

2. The Committee has also taken note with interest the judgements rendered by the Federal Labour Court on 28 September 1989 and 14 March 1990 in the cases of Heinrich-Udo Lammers and Thomas Weber. In the former case the Court held that the attempted termination of a contract of employment on account of the employee's political activities was not socially justified. In the latter, it held refusal of employment to be contrary to the constitutional guarantee of the right to equal access to the public service according to ability, qualifications and occupational performance. The Court distinguished between the duties incumbent upon officials and upon persons employed in the public service under a contract of employment and observed that, in considering the justification for exclusion from the public service on account of political activities of contractual employees, regard must be had to the duties to be discharged, the nature of the functions performed by the employing authority and the field of work in which the employee would be engaged. These judgements applied, in the case of persons employed in the public service on the basis of a labour contract, criteria corresponding to those stated by the Commission of Inquiry in its recommendations with regard to persons in the public service generally.

3. The Committee notes that in cases concering officials, the administrative courts, in contrast to the labour courts, still do not differentiate in the application of provisions on the duty of faithfulness, according to the nature of the functions performed. The Committee notes that, in August 1990, the Federal Constitutional Court, following earlier decisions to like effect noted by the Commission of Inquiry in paragraph 456 of its report, declined to accept for hearing, on the ground of insufficient prospects of success, a complaint arising out of the dismissal of a lifetime official on account of political activities ordered by the administrative courts of Lower Saxony.

4. The Committee would accordingly appreciate information on any measures which may be contemplated by the federal authorities and by the Länder of Baden-Württemberg, Bavaria and Rhineland-Palatinate, in response to the recommendations of the Commission of Inqury, with a view to ensuring full compliance with the Convention.

II. Effective remedies in cases of sex discrimination

5. The Committee has noted the two judgements rendered by the Federal Labour Court on 14 May 1989 concerning compensation in cases of sex discrimination in respect of employment, the texts of which were communicated by the Government with its last report. Although in both cases there was found to have been unlawful discrimination, the Court held that, apart from recovery of any actual expenses incurred by the worker, compensation for immaterial damages might be awarded only where there was serious infringement of the worker's general rights as a human being. Accordingly, in one of the cases, no award of damages was made, whereas in the other the award was limited to one month's wages. It follows that in many cases of discrimination in employment on the ground of sex, the worker will not be able to obtain any compensation, and in others only nominal compensation may be obtainable. The Committee would, therefore, appreciate information on the further measures which it is proposed to take with a view to providing effective sanctions or remedies in cases of discrimination in employment on the ground of sex.

6. The Committee is raising other points in a request directed to the Government.

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

1. Referring to its observation on the Convention, the Committee recalls that the Commission of Inquiry which examined a complaint concerning discrimination on the grounds of political opinion in employment in the public service presented its report in February 1987. The Commission of Inquiry concluded that measures taken in respect of employment in certain public services at the federal level and in certain Länder in application of the duty of faithfulness to the free democratic basic order had in various respects not remained within the limits of the restrictions authorised by Article 1, paragraph 2, of Convention No. 111 on the basis of the inherent requirements of particular jobs. It also concluded that, as exemplified by the cases brought to its attention, those measures did not fall within the exception provided for in Article 4 of the Convention (concerning activities prejudicial to the security of the State). The Commission of Inquiry formulated a series of recommendations to correct this situation. In a letter addressed to the Director-General of the ILO in May 1987, the Government indicated its disagreement with the conclusions reached by the Commission of Inquiry; it stated that it saw no cause to depart from its earlier position (namely, that national legislation and practice were in conformity with the Convention), and that it did not intend to refer the questions at issue to the International Court of Justice.

The Government has continued to maintain that position, both in its reports and in its statements to the Conference Committee. In the latest report, the Government has provided no information on any measures taken with a view to bringing law and practice in the Federal Republic regarding employment in the public sector into conformity with the Convention, nor has it given particulars of judicial decisions rendered during the period under review (information on the latter aspect has become available from other sources). The Government has expressed the view that, in the light of developments in the Communist parties of Eastern Europe and the repercussions which they may have on the German Communist Party (DKP), there would be no point in stating any detailed position at present on the question of the duty of faithfulness in the German public service. The Government has indicated its intention to follow closely developments in political extremism in the Federal Republic and to communicate its views in the light of any changes that may occur.

The Committee observes that, in the three years that have elapsed since the Commission of Inquiry presented its report, only one significant development has occurred in regard to its recommendations: in July 1988, following a change of government, 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 (Regelanfrage). The federal authorities and other Länder whose manner of applying the provisions relating to the duty of faithfulness to the Constitution of persons employed or seeking employment in the public service was found by the Commission of Inquiry to be inconsistent with the requirements of Convention No. 111 (Baden-Württemberg, Bavaria, Lower Saxony, Rhineland-Palatinate) have made no changes in their legislation or practice. In the case of these authorities, proceedings against a number of persons have been systematically pursued and, where judgements favourable to those concerned have been given at first instance, the authorities have lodged appeals. Generally, those in service have been suspended from their work, with reduction of salary, while the proceedings were pending. Consequently, in the period since the ILO inquiry was completed, an appreciable 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 certain lawful political activities, such as standing as candidates at elections or serving as elected members of town councils.

In previous reports and in statements to the Conference Committee, the Government has continued to express its disagreement with the conclusions of the Commission of Inquiry. The Committee of Experts recalls that article 29 of the ILO Constitution empowers a government which does not accept the recommendations of a commission of inquiry to refer the matter to the International Court of Justice, in which case the Court may affirm, vary or reverse any of the Commission's findings or recommendations (article 32). Where, as in the present case, a government chooses not to avail itself of that possibility of review by the International Court of Justice, it ought to act upon the recommendations of the Commission of Inquiry.

In its statement to the Conference Committee in 1989, the Government once more sought to find justification for its position in the fact that one member of the Commission of Inquiry had dissented from its conclusions. It is a general rule of law, applicable to courts and other bodies called upon to formulate findings and rulings, that, where a decision is not unanimous, the majority view prevails. The Committee recalls, moreover, that in the present case the member of the Commission of Inquiry who stated a minority view did not question the findings of fact, but considered that Convention No. 111 had to be read subject to Article 5 of the International Covenant on Civil and Political Rights. As the Committee of Experts pointed out in its observation of 1988, the Article in question provides (inter alia) that nothing in the Covenant may be interpreted so as to permit the limitation of the rights and freedoms recognised in it "to a greater extent than is provided for in the present Covenant". Any attempt to read this Article into Convention No. 111 would thus be in direct contradiction to its own provisions.

In its statement to the Conference Committee in 1989, the Government also once more referred to decisions of the courts of the Federal Republic and of the European Court of Human Rights. These aspects have already been fully considered by the Commission of Inquiry and by the Committee of Experts. The Commission of Inquiry noted that the judgements of the European Court of Human Rights to which the Government has referred were based on the fact that the European Convention on Human Rights did not recognise the right of access to public service, as a result of which the Court did not feel called upon to examine whether the restrictions on employment in the public service were justified, whereas that was the question at issue in the ILO inquiry. The decisions of the European Court of Human Rights, based on a particular interpretation of the European Convention, thus have no relevance to the issues before the ILO inquiry. The decisions of the courts of the Federal Republic have based themselves on the provisions in force within the country and on the view that neither Convention No. 111 nor the conclusions of an ILO commission of inquiry have any direct binding effect in domestic law. They therefore provide no justification for disregarding the obligation, under article 19 of the ILO Constitution, to make the provisions of Convention No. 111 effective, nor for failure to act upon the recommendations of the Commission of Inquiry. On the contrary, if the courts do not consider themselves bound to apply Convention No. 111, then it is incumbent upon the Government to initiate the necessary measures to ensure its observance. As the Commission of Inquiry pointed out, if that result cannot be brought about by other measures, then, in accordance with Article 3(b) of the Convention, appropriate legislative action should be taken.

The Committee of Experts once more expresses the hope that action will be taken to ensure the observance of Convention No. 111 in regard to employment throughout the public service, in accordance with the recommendations of the Commission of Inquiry.

2. The Committee notes that the Federal Labour Court gave judgement on 14 March 1989 in cases concerning the compensation to be awarded to workers who had suffered discrimination in employment on grounds of sex. It requests the Government to communicate the texts of these judgements.

3. The Committee notes that the preparatory work for further legislation to adapt labour law to the requirements of the EEC has almost been completed, and that in this legislation it is proposed particularly to prescribe effective penalties for cases of sex discrimination in the engagement and promotion of workers. The Committee requests the Government to provide information on progress in the enactment of this legislation and to communicate copies thereof, once adopted.

4. The Committee has noted the information given by the Government on the measures taken to promote the training of women in occupations which had hitherto been filled predominantly by men, and the statistics concerning the evolution of the situation in this respect. It requests the Government to continue to provide information on the measures taken to overcome traditional attitudes regarding jobs considered appropriate for men and for women, and on the results obtained.

5. The Committee notes that the information requested from the Land employment offices on the implementation of Circular No. 98/86 of 2 July 1986 regarding equality of treatment in placing in employment and in vocational training will become available only in the course of 1990. It hopes that the Government will be able to provide information on this matter in the next report.

6. The Committee notes that the report of the Federal Minister for Youth, Families, Women and Health on the implementation of the Directive of 24 February 1986 for the promotion of employment of women in the federal administration is in the process of being drawn up. It hopes that the Government will be able to communicate a copy of this document with the next report.

7. Please indicate whether similar information is available concerning the extent of the employment of women, at various levels of responsibility, in the administration of the Länder, local authorities, and other public entities. If so, please communicate relevant documentation.

8. The Committee has noted the extracts from the report of the Federal-Länder Committee on the planning of training and the promotion of research provided by the Government, relating to the promotion of the employment of women in the field of science. It notes that most Länder have adopted legislative provisions similar to section 2(2) of the Federal Act of 14 November 1985 to amend the Framework Act for Higher Educational Establishments, aimed at removing handicaps affecting access by women to scientific positions, and that in Saarland corresponding legislation is contemplated.

(a) The Committee would appreciate information on the adoption of the proposed provisions in Saarland.

(b) It notes that, while the federal legislation and the provisions enacted in some Länder concern only employment in scientific positions, other Länder have provided for the application of the measures in question also to promotion of access of women to non-scientific positions in higher educational establishments and to equality of opportunity for female students. The Committee would appreciate information on any steps that may be contemplated similarly to widen the scope of the measures to cover these additional aspects, where that is not yet provided for.

(c) The Committee notes that a legal basis to require the appointment of persons responsible for ensuring equality of opportunity for women in higher educational establishments does not yet exist in all Länder, and that recommendations for minimum standards regarding this matter have been made in the above-mentioned report. It would appreciate information on the measures taken to give effect to those recommendations.

(d) Please provide information on the results of the various measures referred to above.

9. The Committee has noted the further information provided by the Government regarding employment and unemployment of severely handicapped persons. It requests the Government to continue to provide information on this matter.

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.