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26 March 1997 Doc. 7765
ADOC7765 Revised
REPORT1
on civil service in an enlarged Europe
(Rapporteur: Mr Andrejs PANTEĻĒJEVS,
Latvia, Liberal, Democratic and Reformers' Group)
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Summary
In the framework of its interparliamentary co-operation programme, the Assembly organised two colloquies (Portoroz (Slovenia) in June 1994 and Geneva (Switzerland) in October 1995) on the civil service reform in the context of democratisation and European construction process.
These colloquies particularly sought to provide the parliaments of central and east European countries with information necessary for legislating in this field and to stimulate a discussion on different ways of organising a democratic civil service.
Consequently, the Assembly believes that the intergovernmental work programme should include activities relating to harmonisation of civil service principles and calls on the European Committee on Legal Co-operation to consider drafting a European Code on the Civil Service.
I. Draft recommendation
1. Since the historical changes of 1989, the Council of Europe has supported the democratic transition in central and east European countries and is integrating the latter into the process of European construction.
2. In central and east European countries, the establishment and consolidation of democratic institutions requires a public administration that is loyal to the elected representatives and respectful of the citizens it serves.
3. In west European countries, there is a general trend towards a reform of civil service systems to increase their efficiency and productivity.
4. These issues were examined by parliamentarians, government officials, experts and representatives of international organisations at two colloquies organised by the Parliamentary Assembly in Portoroz (Slovenia) in June 1994 and in Geneva (Switzerland) in October 1995.
5. Discussions during the colloquies revealed that there are a number of different ways to organise a public civil service and showed the interaction between democratic transition and civil service systems.
6. At the same time, it appeared that there is a European dimension to civil service, in particular in the framework of the European Union, and a need to harmonise the basic principles which should be respected by Council of Europe member states when legislating in this field.
7. In this respect, the Assembly considers that the European Convention on Human Rights lays down a foundation of common values and although it contains no provisions on civil service, could serve as a basis to devise a code of values for a civil service in a European democratic society.
8. In its Recommendation 1303 (1996) on the proposal for a second summit of heads of state and government of the Council of Europe, the Assembly already asked the Committee of Ministers to include the drawing up of European legal instruments on civil service amongst the points to be discussed at this meeting.
9. Consequently, the Assembly recommends that the Committee of Ministers
i. include activities relating to the harmonisation of civil service principles (recruitement, training, ethics and status) in the intergovernmental work programme;
ii. instruct the European Committee on Legal Co-operation to examine the possibility of preparing a recommendation in order to improve the efficiency of the civil service and to elaborate a European code on the civil service.
II. Explanatory Memorandum
by Mr Pantelejevs
I. INTRODUCTION
1. As part of its interparliamentary cooperation programme, the Assembly seeks to provide the parliaments of Central and Eastern European countries with information about subjects on which they are or will be legislating.
2. For this purpose, the Sub-committee on the European Civil Service, of the Committee on the Budget and the Intergovernmental Work Programme, organised two colloquies on questions relating to civil service reform in the context of democratisation. The first colloquy was held in Portoroz (Slovenia) in June 1994 and the second in Geneva in October 1995. The proceedings of these meetings were published separately.
3. The Colloquies served, among other things, to stimulate thought and discussion about different ways of organising a democratic civil service as well as about the implications of democracy for civil service values. Speakers were generally careful to point out that each country has its own economic and social system and cultural traditions but also its specific problems which have to be taken into consideration when discussing civil service. In other words, there is no one model and no correct answer.
4. Nevertheless, it was stressed repeatedly that the civil service is an essential element in any state and a democratic state depends on a democratic civil service. As Sir Keith Speed, Chairman of the Committee at the time, noted in his opening address at Portoroz, the civil service is one of the most important links between the citizen and government institutions - if this link is too weak, the whole of the democratic system suffers.
5. The establishment and consolidation of democracy requires an efficient public administration, loyal to the democratically elected government of the time, and an administration with a human face, respecting the citizens it serves. Balancing these demands is not easy. Some aspects can be regulated by law (eg. Civil Service Codes), but it is primarily a question of attitudes and behaviour.
6. At the same time, there is a European dimension to public administration reform. This does not refer simply to the lessons a country can draw from other countries' experiences but also to those resulting from the growing harmonisation in some European countries. This is especially obvious in the European Union, where we find there is increasing talk of "the European administrative area". It is not just that civil services of member states increasingly need to cooperate but that the mobility of employment which now covers parts of the public sector requires harmonisation, as far as possible, of public service conditions of employment. At Council of Europe level, one may consider, for example, that the European Convention on Human Rights imposes an obligation on the civil service also to respect certain common principles of democratic values.
7. However, even though the political will for change exists, the question of which civil service model to adopt remains.
8. Without aiming to present a specific system, this report reiterates the main subjects raised at the colloquies mentioned above and attempts to identify the principal aspects which civil services in central and east European countries will be able to draw upon in due course. It also aims to highlight the problems mentioned during the debates and the need to start discussions without delay to find solutions to these problems.
II CIVIL SERVICE SYSTEMS
a. Definition of civil service
9. The term "civil service" has different connotations. It can mean all personnel having public law status just as it can include certain officials with private law status. Even the idea of "civil servant" is far from standard since it can refer to both permanent and temporary staff, and even to officials recruited under contract (unestablished civil servants). The question therefore of who is a civil servant depends as much on a country's politico-administrative tradition as on a logical, rational definition. In the United Kingdom for example, civil servants are servants of the Crown, other than holders of political or judicial office, appointed in a civil capacity and paid wholly and directly from funds provided by Parliament. This definition, however, is valid only for them.
10. It is therefore necessary to consider two definitions of civil servant, one organic, the other functional, although each can be interpreted with some degree of latitude.
11. The organic definition of civil servant covers many people working more or less directly in the public sector (ministries, state departments) but also those working for public law entities (regions, provinces, departments, towns, municipalities and so on), state-run economic and social public services or local and regional authorities. This explains why in France hospital service officials and in Belgium railway employees are considered civil servants.
12. According to the functional definition, civil servants are public officials exercising prerogatives of public authority or helping to defend the vital interests of the state or self-governing authorities. The definition does not include people who, despite occupying positions in state bodies or other public law bodies, do not in any way contribute to work that is part of public administration proper. The following are therefore regarded as civil servants : members of the armed forces, police forces and other law enforcement services, judiciary, tax authority, diplomatic service, government ministries, regional governments, local and regional authorities and central banks insofar as these people perform activities structured around a state judicial authority or another public law entity, such as the drafting of legal acts, their implementation, monitoring of their implementation, and supervision of dependent bodies. This is similar to the German concept which distinguishes between civil servants on the one hand and employees and workers on the other, with only the former exercising prerogatives of public authority. This concept is also applied by the European institutions and, in particular, by the European Union Court of Justice.
b. Levels of civil service
13. Depending on which definition is used, the number of civil servants differs. Everyone working in the Ministry of Finance, the Ministry of Foreign Affairs and local and regional authority bodies could be regarded as a civil servant. But the definition could also be limited to people contributing to the exercise of public authority. This is the situation in Denmark where only staff having at least managerial grade are defined as civil servants, with lower grade staff being employees under collective agreements.
14. For staff in local and regional authority bodies, there are several possible situations. In France, for example, they are civil servants whose status is regulated by law but which is not the same as that of national civil servants. In Germany and Spain, for example, a small minority has civil servant status while the most staff are employees. In other countries, such as the United Kingdom, they are employees.
15. In the former communist system, the notion of civil servant was connected with the exercise of state authority. Any appointed or elected official with responsibilities authorising him to exercise state authority was considered to be a civil servant. Entry to the state structure was by direct or indirect election or by an individual administrative act of appointment, and work relations were based on these two mechanisms.
16. All these people were state workers and fitted into one of three categories :
- those who took political decisions : these were representatives of political power who were regularly elected by citizens, and the supreme heads of administrations, ministers or state secretaries, who were usually national or local elected representatives;
- those who executed political decisions : these were public officials or civil servants who contributed to the functioning of executive administrative bodies. They could be regarded as either civil servants or employees;
- those who liaised between the political authority and the executive administrative bodies, in other words high-ranking officials or senior executive officers, such as vice-ministers, general secretaries, directors and so on.
c. The status of civil servant
17. In all the member states, the situation of civil servants and public officials is entirely governed by legislation and/or regulations.
18. This means that the status of civil servants can be changed at any time, as can the rights and obligations they had on their appointment to the civil service. However, civil servants may not be subject to labour law provisions that are not explicitly mentioned in the texts governing them.
19. But it is important to stress that in the past few years, a cooperation policy has developed between governments and civil service unions resulting in a number of agreements on employment conditions. In France, for example, pay agreements were concluded, after which the cooperation policy was extended to other sectors such as further training. However, the French Conseil d'Etat considered these agreements to be invalid until they had been embodied in legislation or regulations.
d. The two civil service systems : career-based or post-based
20. The distinction between the two systems is very clear. The career-based system gives officials a status implying rights and obligations and establishes a stable, professional career, such as in France and Germany. The post-based system is more flexible and more like the private sector, such as in the United Kingdom.
i. The career-based system
21. The career system is based on the principle of the distinctive nature of public administration which requires, for its operation, staff with special skills devoting their entire working life to the civil service. In this system, the civil service is a hierarchy of "corps" or levels, grades or ranks, and posts. Civil servants with a general academic background will pursue a career within a promotion structure based on length of service. They enjoy job security. The career system reflects a political intention to distinguish more clearly between administrators and the citizens they serve, in the interests of and for the service of the public.
ii. The post-based system
22. One of the characteristics of this system is that each post in the administration is analysed as in the private sector. Jobs are classified according to the level of qualifications required, the tasks involved and the rate of pay. The civil servant is recruited to fill a specific post and has no job guarantee or security. The status of civil servant is linked to the existence and future of that post. The system reflects a desire to keep the civil service as close as possible to civil society. It allows the recruitment of specialists while being considerably less expensive, since the state does not have to run the kind of civil servant training schools found in some countries with career-based systems (Spain and France). This system also politicises civil servants such that they fit in completely with the political persuasion of the government in place.
23. In the Netherlands, however, despite the post-based system, public officials do have career prospects although there is no organised career structure and advancement depends on the individual civil servant. As staff are systematically notified of job vacancies, recruitment is principally internal. Civil servants therefore tend to remain and pursue their career in public administration.
e. The civil service : a changing profession
24. In practice, no state strictly applies one or other system. Moreover, there is a general trend among Europe's civil services at present towards replacing the predominantly career-based systems with post-based systems.
25. This trend has focused on concepts of flexibility and redeployment. The changes that have occurred everywhere on Europe's political, economic and social scene have accentuated the need for these concepts. Some European governments have based their policies on the principle that state action is not essential and that public spending hinders the creation of wealth.
26. Since these principles have been applied to the civil service, recruitment conditions have become more flexible, contract employment has increased, rules governing career advancement have been called into question and the concepts of productivity, efficiency and merit have been incorporated into pay methods with the introduction of assessment systems.
27. The British civil service, for example, already contains all the ingredients of the concept of flexibility. Originally a career system, it is run increasingly along the lines of a post-based system.
28. Nevertheless, it should be stressed that Europe's career-based civil services are far from inflexible. In Spain, Belgium and France, which have career systems, recruitment by competitive examination means candidates can be selected on the basis of their qualifications and examination results; candidates' merits can be further assessed in interviews.
III. BECOMING A CIVIL SERVANT
a. Access to the civil service
29. Recruitment in a post-based system is relatively straightforward. Candidates must fulfil a set of conditions clearly stated in the vacancy notice for a fixed-term post. In a career-based system, the problem is more complex and more difficult. Two partly contradictory requirements have to be reconciled : recruitment to a given post requiring specific skills and recruitment for a person's working lifetime.
30. In European democracies with a career-based system, recruitment observes two principles, equality of access and open competition.
i. The principle of equality of access
31. This principle was in the Déclaration des Droits de l'Homme et du Citoyen, published in France in 1789, and appears in Article 21 of the Universal Declaration of Human Rights : "Everyone has the right of equal access to public service in his country". This means that any restrictions based on sex, race, religion and public opinions are prohibited. The only exceptions are restrictions on the grounds of nationality, morality, age, and physical aptitude. Applicants must also be able to exercise their civic rights and have been discharged from their national service obligations.
ii. The principle of open competition
32. Some states systematically recruit by open competition. In France and Spain, for example, all civil service posts are filled by competitive examination except for some, which are reserved at the discretion of the government and local and regional authorities and filled by political appointment. Italy also applies this principle, which now affects only a very small number of services, including the diplomatic service and the judiciary.
33. Even though practical recruitment procedures vary, two objectives are consistently sought, the correct assessment of a candidate's qualities, and guaranteed independence of the selection body. Also, the publication of vacancy notices is systematic, compulsory and as wide as possible.
34. For the assessment of candidates, there are two types of selection, either by independent bodies (as in the United Kingdom and Belgium), or by the administration itself.
35. In Germany, candidates must have received specific training before applying for a civil service position. In the United Kingdom, the Civil Service Commission defines the conditions and level of recruitment and only those candidates approved by the Commission can be appointed. Italy has a similar system, where a panel draws up a list of possible candidates. In France, recruitment is carried out by a panel independent of the appointing body; this body is bound by the panel's choices and the candidate's place in the list. The Netherlands and Denmark employ procedures comparable to those used in the private sector. The recruiting and appointing body is not bound by general criteria.
36. In many countries, however, appointments to some senior posts (high-ranking civil servants) bypass competition procedures and are based on political criteria and confidence in the person concerned.
b. Training of civil servants
37. At present there are four main approaches to the training of civil servants.
38. Initial training is given on entry to the civil service, the main purpose being to "socialise" civil servants, and make them aware that they belong to a community, that of servant of the state, and that they must be politically neutral. There are two main models at present, the French model where training is dispensed by the Ecole Nationale de l'Administration and the British model, where universities fill that role.
39. In-service training enables staff to update their knowledge, and can be provided by special schools or at the workplace.
40. Development training can provide civil servants with new skills to cope with changing needs and means they can be given new responsibilities for which their previous training did not equip them. It is, in fact, vocational training in the broadest sense.
41. Managerial training has become increasingly necessary to give senior executives the tools to carry out their tasks. Technical training alone has proved inadequate since these civil servants need to be trained in exercising managerial responsibilities.
c. Civil service career structure
42. In a career-based system, civil servants generally advance from grade to grade and from step to step within a grade. Progress through the steps is continuous and is based on length of service and sometimes on the civil servant's professional merits. Although it is usually automatic, progress may be delayed by disciplinary measures. Advancement from one step to another affects only pay and not the duties performed.
43. When civil servants move to a higher grade they are transferred from one post to another further up the hierarchy. Their duties change, responsibilities increase and, usually, so does their salary. As with all appointments, promotion to a higher grade is not possible unless there is a vacancy. Selection methods may vary (promotion table drawn up in consultation with staff representatives, professional examination, competitive examination, etc) but it is always based on an assessment of the candidates' merits. Promotion may also be linked to completion of a certain number of years of service in the lower grade and completion of a given length of vocational training.
44. Strict promotion rules mean that civil servants are not subjected to the arbitrary decisions of their superiors.
IV. CIVIL SERVICE ETHICS
a. Independence of civil servants
i. The respective roles of civil service and civil servant
45. Each country applies the principle that the civil service is subordinate to public authority. In our democracies, political decision-making power is always in the hands of elected representatives, and civil servants must carry out the decisions of politicians.
46. There are differences from one country to another, with three possible situations:
- the civil service is totally separate from and subordinate to the government ; this is a system of separation between civil service and political authority;
- the civil service is theoretically separate from government but in practice a number of civil servants are in a position of allegiance to the government; this is a system of partial osmosis between the civil service and political authority;
- the civil service is bound to and subordinate to both the government and a political party; this is a system of integration of civil service and political authority.
47. The third system existed in the former communist regimes.
48. The first system corresponds to the situation in the United Kingdom and Belgium. Senior civil servants avoid the hazards of politics but this separation between politics and administration is exercised within strict subordination to elected representatives. Top-grade civil servants (permanent secretaries, general secretaries, director-general, etc) can be dismissed by their ministers only in exceptional cases. However, they are required to be absolutely neutral and to be able to work with ministers from any party.
49. The second system is the most realistic. Civil servants appointed to a minister's private office must be competent collaborators capable of giving the minister informed advice. Two examples are the "political civil servants" in Germany and "appointments at the government's discretion" in France.
ii. The civil servant as servant of the state and government
50. This heading brings us back to the question : what does "democratic administration" mean? Replies such as "subordination to the elected government" and "respect for the law" are insufficient. In this context, reference may be made to three existing models.
51. In the first model, civil servants are the servants of a government responsible for administration before a democratically elected parliament. The fundamental duty of civil servants is first and foremost to their immediate superior. At the highest level, this means the minister, irrespective of the party in power. In this model, which exists in the United Kingdom, all administrative decisions taken in ministries are done so in the name of a minister, who is answerable either politically or before the courts for that decision.
52. The second model tries to separate policy-making, done by the government assisted by a small number of civil servants, from policy implementation and the application of laws by the administration, as is the case in Germany. This implies a separation between the government's shaping of policy and its implementation by the administration.
53. In the third model, the civil service is seen as having an independent view of the national interest, above party politics and sector-based interests. The responsibility of civil servants is to the state and the national interest. This is the case of France.
54. However, there is increasingly a trend towards a new image, that of an administration attentive to the needs of its citizen-customers. There is a shift from administrator to citizen. Civil servants are not only answerable to their superiors but also to the general public.
iii. Civil service continuity
55. Continuity is an essential characteristic of the civil service. It is the expression of an authority that cannot be exercised intermittently.
56. Where there is profound political change, however, the question arises as to whether civil servants who served the previous, non-democratic regime should retain their rights and job security. This problem is not recent since it was raised in many countries in Central and Eastern Europe.
57. In fact, these professional restrictions are not connected with the subject's criminal responsibility but with a political responsibility for active involvement in upkeeping the former repressive regime. This kind of restriction consists of two complicated issues: the ethical and the purely professional one. In this context, one must highlight the professional side. It is indispensable to ensure the functioning of the institutions even during the critical political changes. We must quickly replenish the civil servant positions that are vacated. We must therefore ensure a rapid preparation process of new civil servants. A compromise has been reached in Latvia where civil servant of the former regimes have been employed on a contractual basis as consultants. But such a compromise creates political and moral problems. It appears therefore necessary to pursue the examination of this question and its effects, in the framework namely of the elaboration of an European Code on the civil service.
58. There is no doubt that the skills of the civil servants in place are important and necessary. It is an obvious managerial argument. However, decisions on whether to retain staff from non-democratic regimes are very often political decisions, involving practical considerations as well as principles, to which there is no correct answer.
b. The political neutrality of civil servants
i. The principle of political neutrality
59. The political neutrality of civil servants is an issue on which opinions vary considerably depending on the country and on historical traditions. Should the civil service be entirely in the service of democratically elected politicians or can it regard itself as an independent institution? Should civil servants be able to exercise their political rights in the same way as other citizens and to what extent?
60. In the United Kingdom, the civil service works for the government and citizens, and is not an independent entity with its own values.
61. Should politicians have a say in the appointment of civil servants, as was the case in the communist and fascist regimes? The answer must be no. The real question is whether high-ranking civil servants should be independent career officials or appointed for political reasons. Only in the United Kingdom and Ireland is independence at all levels considered necessary.
62. In all other countries, ministers have a degree of discretionary power to appoint top-grade civil servants, so that they may surround themselves with staff sharing their beliefs. However, this encourages the politicisation of the civil service at all levels.
ii. Loyalty to elected representatives
63. In the United Kingdom, the civil servant is the loyal servant of a democratically elected government. In other countries, such as France and Germany, the civil service is seen as an independent force providing "State continuity" and the mediator between the State and society, guaranteeing respect for the public interest. Generally, in addition to requiring specific professional skills and knowledge, civil servants are expected to be neutral, loyal, impartial, hard-working and concerned with the general interest.
iii. The appointment of senior civil servants
64. It appears to be increasingly preferable for high-ranking officials to be selected from within the civil service itself. If they are recruited through the objective, neutral procedures of competitive examinations, successive governments, whatever their political persuasion, will have in their ranks senior civil servants who are in step with the political trend of the day and who are recognised professionals. This does not rule out the possibility for governments of appointing to these top positions people entirely outside the administrative system.
65. It is therefore essential to build up a pool of senior executives or high-ranking officials where politicians can find people whose skills have been tried and tested. As the OECD has recommended, it would be a good idea to introduce a management system for the senior civil service. This body of senior executives would produce an elite of generalists capable of executing political decisions and judiciously advising ministers, taking due account of the political dimension of issues.
c. The integrity of civil servants
66. Two factors are essential for a satisfactory civil service : ethics and confidence. These two values go hand in hand. For the civil service in western Europe, ethics usually consist of impartiality, a sense of public service and resistance to corruption. The administration must observe stringent ethical rules. Members of parliament and ministers must help civil servants by defining a strict code of conduct and elected representatives must refrain from asking civil servants to cross the line that separates what is right from what is not.
67. Civil servants are more efficient if they have confidence in one another and if the authorities are certain that their civil servants give them useful, impartial advice. The civil service is more efficient if people think that civil servants treat them fairly, without inequality or corruption.
68. The contamination of public life by corruption is a problem throughout Europe. It is especially serious in some Eastern European countries after 50 years of a system in which parties had succeeded in making citizens even more mistrustful of civil servants. However, this subject is so vast it warrants a separate report.
V. CONCLUSION
69. In the light of the above and given the diversity of civil service systems, it has become necessary to draw up a code of ethics for the civil servant in Europe. Such a code would not lay down specific rules but would define the main principles to be observed when a state legislates in this field.
70. There is, indeed, very considerable interest in the idea of a code of ethics. Democracy needs clear rules to govern relations between civil servants, politicians and citizens.
71. Discussion is needed about the meaning of the word "democratic" in relation to the civil service. It is not as straightforward as it may seem. There are different traditions in different countries and different ways of thinking within individual countries.
72. European countries nevertheless have a foundation of common values laid down by the European Convention on Human Rights. On that basis, it should therefore be possible to devise a code of values for civil services, defining the general characteristics of a democratic civil service, in other words, which expresses what people expect from a public service in a democratic state. It would be a general text reflecting a consensus on a number of principles but allowing a variety of acceptable interpretations in different countries.
73. To conclude, this report demonstrates the need to follow up the questions raised at the colloquies, particularly those concerning the status of civil servants, their independence, the appointment of senior civil servants and corruption, among others. The Council of Europe is the ideal forum to undertake such a task.
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Reporting committee: Committee on the Budget and the Intergovernmental Work Programme
Budgetary implications for the Assembly: none
Origin: Order No. 476 (1992)
Draft recommendation unanimously adopted by the committee on 28 January 1997
Members of the committee: Mr Schreiner (Chairman), MM. Cox, Theis and Goovaerts (Vice-Chairmen), Mr Aleffi (Alternate: Mr Gnaga), Mr Behrendt, Ms Bieliková, MM Bokov, Boucheron, Bugli, Ms Calner, MM Cangemi, Cherep, De Marco, Eörsi, Fernandez Aguilar, Sir John Hunt, MM Jónsson, Kaalund, Kamhi, Ms Karamitro, MM Koulouris, Kriedner, Ms Luhtanen, MM Luís, Mautner-Markhof, Melčák, Melescanu, Meštroviċ (Alternate: Mr Eltz), Muravschi, Oorzhak, Panteļējevs, Pattison, Piatkowski, Plattner, Popovski, Ms Ringstad, MM Rupar, Valk, Vishnyakov
N.B. The names of those members who took part in the meeting are printed in italics
Secretaries of the committee: Ms Nollinger and Ms Ramanauskaite
1 1by the Committee on the Budget and the Intergovernmental Work Programme