Opinion of the European Central Bank of 11 May 2009 on the legal relationships applying to Deutsche Bundesbank staff (CON/2009/45)
Date: 2009-05-11
Institutions: European Central Bank
Subjects: Germany, central bank, civil servant, national law, personnel administration

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 11 May 2009  

on the legal relationships applying to Deutsche Bundesbank staff 

(CON/2009/45) 

Introduction and legal basis 

On 30 April 2009, the European Central Bank (ECB) received a request from the Deutsche Bundesbank 

for  an  opinion  on  a  draft  order  regulating  the  particular  legal  relationships  applying  to  Deutsche 

Bundesbank staff (hereinafter the ‘draft order’). 

The  ECB’s  competence  to  deliver  an  opinion  is  based  on  Article  105(4)  of  the  Treaty  establishing  the 

European Community and the third indent of Article 2(1) of Council Decision 98/415/EC of 29 June 1998 

on  the  consultation  of  the  European  Central  Bank  by  national  authorities  regarding  draft  legislative 
provisions1, as the draft order relates to the Deutsche Bundesbank. In accordance with the first sentence 

of  Article 17.5  of  the  Rules  of  Procedure  of  the  European  Central  Bank,  the  Governing  Council  has 

adopted this opinion. 

1.  

Purpose of the draft order 

The draft order regulates certain features of the legal relationships between the Deutsche Bundesbank and 

its  civil  servants,  employees  and  workers,  and  replaces  the  Deutsche  Bundesbank’s  existing  Staff 
Regulations2. 

The  draft  order  is  necessary  because  the  power  to  regulate  these  issues  was  transferred  to  the  Federal 

Government  (hereinafter  the  ‘Government’)  as  the  result  of  an  amendment  to  §  31  of  the  Law  on  the 

Deutsche Bundesbank made by the Law on the reorganisation and modernisation of Federal civil service 
law3, on which the ECB gave its views in Opinion CON/2008/9. 

Before the abovementioned amendment to § 31 of the Law on the Deutsche Bundesbank was adopted, the 

Executive Board of the Deutsche Bundesbank (hereinafter the ‘Executive Board’) itself had the power to 

regulate  staff  and  career  matters  autonomously,  subject to  approval  or  agreement,  as  applicable,  by  the 

Government. Pursuant to the amended § 31(4) and (6) of the Law on the Deutsche Bundesbank, however, 

the Government is authorised to regulate the legal relationships between the Deutsche Bundesbank and its 

civil servants, employees and workers either by adopting orders itself, or by delegating the power to adopt 

orders to the Executive Board.  

1  
2  
3  

OJ L 189, 3.7.1998, p. 42. 
[2007] Bundesanzeiger p. 2120. 
[2009] Bundesgesetzblatt (BGBl.) I p. 160. 

 
 
 
 
                                                 
Since adoption of the amendments to § 31 of the Law on the Deutsche Bundesbank, the Government has 

delegated its power to the Executive Board by means of §§ 1 and 2 of the Order on the transfer of the 
Federal Government’s powers to adopt orders pursuant to § 31 of the Law on the Deutsche Bundesbank4.  

The  Executive  Board  now  intends  to  make  use  of  the  implementing  power  delegated  to  it  by  the 

Government to adopt the draft order.  

2. 

General observations 

2.1  The  ECB  welcomes  this  consultation  request  by  the  Deutsche  Bundesbank  on  the  draft  order. 

Bearing  in  mind  the  principle  of  central  bank  independence  and  central  bank  autonomy  in  staff 

matters,  however,  the  ECB  would  like  to  take  this  opportunity  to  express  its  concerns  about  the 

regulatory arrangements that form the basis of the draft order.  

2.2 

In Opinion CON/2008/9, the ECB stated its concerns about the change of regulatory competence in 

relation  to  Deutsche  Bundesbank  staff  issues.  In  particular,  it  considered  that  the  proposed 

amendment  would  increase  the  Government’s  discretion  in  this  context,  thereby  reducing  the 

Deutsche  Bundesbank’s  autonomy  to  take  decisions  concerning  its  staff  regulations.  Further,  the 

ability  of  the  Government  to  withdraw  the  delegation  at  any  moment  was  considered  a  potential 

tool  to  unduly  influence  a  national  central  bank  (NCB)  in  fulfilling  its  tasks  and  thus  limits  that 
NCB’s  independence5.  The  ECB  therefore  recommended  including  sufficient  safeguards  in  the 

draft law under consideration to ensure that the Deutsche Bundesbank’s ability to carry out its tasks 

would not be affected; moreover, the ECB stated that it considered that the delegation of powers to 

the Deutsche Bundesbank as provided for in the draft law was insufficient. 

2.3  The ECB’s concerns and recommendations, as expressed in Opinion CON/2008/9, were not taken 

into  account  by  the  national  legislator.  Against  this  background,  the  ECB  considers  it  highly 

important to restate that an NCB’s autonomy in staff matters is a particular aspect of the principle 
of central bank independence under Article 108 of the Treaty6. As has been recently emphasised on 
several  occasions  regarding  different  Member  States7,  an  NCB  may  not  be  put  into  a  position 

where it has limited or no control over its staff, or where the government of a Member State seeks 
to influence it in the performance of its tasks8. This stance taken by the ECB with respect to the 

autonomy of the NCBs in staff matters is well-established practice. 

2.4 

In this context, the ECB once again stresses that, when it comes to the adoption of orders regarding 

staff matters and the direct regulation of the legal relationships between the Deutsche Bundesbank 

and all categories of its staff, including the careers of such staff, the amended § 31 of the Law on 

the  Deutsche  Bundesbank  now  authorises  the  Government  both  to  delegate  such  power  to  the 

4  
5  

6  
7  
8  

[2009] BGBl. I p. 813. 
See  paragraph  2.4  of  Opinion  CON/2008/9.  All  ECB  opinions  are  available  on 
www.ecb.europa.eu/ecb/legal/opinions/html/index.en.html. 
See paragraph 3.2 of Opinion CON/2009/15. 
See ECB Convergence Report 2008, p. 22, and Opinions CON/2008/9 and CON/2008/10. 
See ECB Convergence Report 2007, p. 20, footnote 7, referring, inter alia, to Opinion CON/2004/1. 

the  ECB  website  at 

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Executive Board and to withdraw such power from the Executive Board. Although it was already 

the  case  prior  to  the  amendment  of  §  31  in  2008  that  Government  approval  was  required  for  the 

adoption of orders by the Executive Board, the ECB considers that the amended § 31 nonetheless 

amounts  to  a  withdrawal  of  the  Deutsche  Bundesbank’s  authority  to  determine  the  legal 

relationships  and  career  policies  for  all  categories  of  its  staff.  This  is  a  situation  which,  in 

comparison  with  the  rules  previously  in  force,  is  detrimental  to  the  Deutsche  Bundesbank’s 

independence.  

2.5  The ECB therefore reiterates to the national legislator and the Government its recommendation that 

the Deutsche Bundesbank should be given more autonomy in staff matters, thereby providing for 

sufficient safeguards to ensure that it can carry out all of its tasks independently, in particular its 

ESCB-related tasks.  

This opinion will be published on the ECB’s website.  

Done at Frankfurt am Main, 11 May 2009. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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