Externe Personen (Germany)
|Author: Andreas Maisch|
|Affiliation: Axel Springer and Die Welt|
Original Text: Andreas Maisch, Axel Springer and Die Welt
In Germany, externe Personen (which literally means ‘external persons’) are individuals who work in the civil service, but do not officially have the status of civil servants. They maintain an external employment relationship in the non-state sector while on temporary secondment in the civil service. Externe Personen are seen as a potential gateway for lobbying. In the past, the European Commission also used external persons from private companies, but stopped this practice in 2009 following substantial criticism by politicians, media and NGOs.
The German administrative regulation on the use of externe Personen in the federal administration regulates the exchange of personnel between the public administration on the one side, and the private sector or institutions of science, culture, and civil society on the other side. The first paragraph of this administrative regulation from 2008 defines the term externe Personen as follows: ‘Externe Personen is one who has an employment relationship outside the civil service and works temporarily in the federal administration, while maintaining his previous employment relationship.’ (General administrative regulation, 17 July 2008). In the media external persons are often called ‘externals’ (Externe) or ‘external employees’ (externe Mitarbeiter). They work for a limited but sometimes extended period of time, usually for several months or sometimes a number of years.
The term externe Personen does not include those working on temporary contracts or completing expert reports for the civil service. It includes only the use of personnel in the civil service who maintain their previous employment. For the purpose of the administrative regulation, ‘civil servant’ is an occupation in the service of the state, a federal state, a municipal, or another public body. In this regard, public enterprises are considered to be part of the civil service. Hence, religious associations, which are usually organised as public corporations in Germany, are excluded.
In the eyes of some observers, external persons are a new type of lobbying. They argue that externe Personen serve two different organisations at the same time and can have conflicts of interests. For example, the anti-lobbying NGO LobbyControl argued that externe Personen serve two masters at the same time, while some politicians have demanded that the practice be ended altogether.
In contrast to policy advisors, externe Personen work within the administration and have access to internal data. In this respect, externe Personen bear similarities to national seconded experts in the European Commission. The difference is that national seconded experts today do not work for companies, unions or the like: they are usually employees of a national or regional public administration. Yet, several years ago, before the Commission put an end to the practice, national seconded experts and temporary administrators (non-permanent officials) were allowed to come from private companies. For instance, an employee of the German chemical company BASF worked as a temporary administrator in the European Commission from 2001 to 2004. His work was concerned with the European Union directive REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) – a conflict of interests. Siim Kallas – the commissioner responsible for administrative affairs at that time – put an end to the practice in the European Commission as a response to criticism by Green politicians, media and NGOs. Kallas stated that the use of external persons was a ‘German idea’. According to the European Commission, no representatives from companies, associations or trade unions have worked for the European Commission since 2009.
It is important to distinguish between the terms externe Personen and lobbyists. Some externe Personen may be perceived as lobbyists, because they are employees of private companies. Hence, in Germany most external persons' original employers are public institutions or research centres like the German Aerospace Center. For instance, the Ministry of Justice feared that a planned exchange with a trade association could be perceived as industry influence on the ministry’s policy, and cancelled its plans for the exchange.
In 2004, the German government under Chancellor Gerhard Schröder (comprised of the Social Democratic Party (SPD) and the Greens) introduced a new programme for the exchange of personnel in order to improve the mutual understanding of public administration and the economy, and improve the transfer of knowledge between the public and private sectors. The government makes use of the temporary need for the externals’ expert knowledge, and also sends officials to the private sector. The initiative, which started in October 2004, was part of the state programme ‘Modern State - modern administration’. Although under this programme personnel exchange took on a new dimension and became more public, this was not the beginning of such efforts: the Federal Ministry for Economic Cooperation and Development had already been practising such an exchange with the Federation of German Industry (BDI) since 1997, while the Federal Ministry of Economics and Technology has had an exchange with companies and associations for more than 30 years.
In 2006, German media reported cases of conflicts of interests and how externe Personen influenced laws affecting their companies. Lobbyists contributed to laws in several ministries. One externe Person even leaked internal government documents to his original employer. An employee of the car manufacturer Daimler copied Ministry of Transport internal documents and informed his company about plans for a lorry toll.
As a reaction to these disclosures and the resulting widespread criticism, the government passed an administrative regulation on the use of externe Personen in July 2008. Since then, the Federal Ministry of the Interior has had to report twice a year to two committees of the Bundestag, giving details of the use of externe Personen in government and the ministries they are working in.
Although it is forbidden for externals to write laws or to assign public contracts, they remain a potential gateway for lobbying. Research has shown that the ministerial bureaucracy is the primary addressee for lobbyists. One problem is that externals lack the legitimacy to work in the civil service, because they have not applied for a position in the civil service and are not officials. Hartmann has criticised the use of external persons as unconstitutional, finding that neutral and effective control was missing.
In addition, externals reinforce the existing asymmetric access of big companies and associations to ministries. Some single organisations get privileged access to the civil service, whilst others lack these opportunities, which potentially adversely impacts marginalised groups and un-organisable interests. Research shows that the Federation of German Industry (BDI) has sent many externals to multiple ministries, whilst only one came from a trade union.
In general, there is surprisingly little research on the phenomenon of externe Personen. In principle, research may combine qualitative and quantitative methods. It is possible to count how many externe Personen there are in each ministry, because the Federal Ministry of the Interior publishes annual reports on their use. Until the year 2015 the ministry produced biannual reports, but these were not published. Even though these older reports are not public, it is possible to obtain access to them (for instance, by using the Freedom of Information Act called Informationsfreiheitsgesetz). The number of externals can be compared over time and across ministries. Researchers can use the reports for a content analysis and classify the external persons' activities. Expert interviews are a further method to measure the impact of externals, although in practice most ministries involved seem to be unwilling to answer scientists' questions about this topic.
An analysis of the above-mentioned reports by the author shows that the number of external persons within the federal administration decreased from 61 in 2008 to 42 in 2014. It seems that increasing transparency and public criticism of the use of externals led to the decrease in their use.
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