Das Recht des „öffentlichen Dienstes“ - Grundlagen und neuere Entwicklungen in rechtsvergleichender Perspektive. Die österreichische Sicht

Abstract

This paper is based upon a lecture held by the author at the discussion group “Administration” at the annual conference of the Association of German University Teachers of Constitutional Law in Saarbruecken in 2017. The first part covers the constitutional basis of public service in Austria. The relevant provisions deal with the distribution of competences, the exercise of authority over civil servants, the personnel responsible for public administration and the duty to obey directives given by superior administrative bodies. The second part reveals the impact of European Union law on public service in Austria. The focus is on the freedom of movement of workers (Article 45 para 4 TFEU) and the prohibition of age discrimination laid down in secondary European legislation as interpreted by the European Court of Justice. After a presentation of the dual concept of public sector employment in Austria (employment under public law or contract law), the paper analyses in its third part the question to what extent and for what purpose the Austrian Federal Constitution does require endowing civil servants with formal public law status. In addition, the study deals with the effects of the extensive outsourcing of public tasks and the transfer of the personnel entrusted with these tasks to outsourced legal entities. Finally, the article reconsiders the right of Austrian civil servants to strike. The recent case law of the European Court of Human Rights regarding Article 11 of the European Convention on Human Rights indicates that also civil servants are entitled to strike in principle.