Verfahrens- und materiellrechtliche Anforderungen an die vorzeitige Abberufung von Vorstandsmitgliedern der Deutschen Bundesbank

Prima vista, the board members of the Central Bank of the Federal Republic of Germany, the Bundesbank, seem to be the only public servants in Germany that may not be divested of office. The authors of the present article, however, take the position that whilst no legal provision exists that would explicitly allow the board members of the Bundesbank to be relieved from office such a dismissal, nevertheless, remains possible. The necessity for such a power to dismiss was highlighted in 2004, when former Bundesbank President Ernst Weltecke was caught up in the so-called Adlon-scandal, which involved him accepting an invitation to the Adlon Hotel by the Dresdner Bank and to a Formula 1 race in Monaco by BMW (which is also the parent company of the BMW Bank). The necessity was reiterated in 2010 when public outcry formed against board member of the Bundesbank Thilo Sarrazin, who had repeatedly made headlines with his (personal) public statements on the unwillingness of immigrants of Islamic belief to adapt to German society and the supposed genetic reasons for their inaptitude to succeed in the working place. While the aforementioned affairs were both dissolved by the respective protagonist's resignation, they have shown that despite the Bundesbank's utmost need for independence, circumstances may arise that would make it inevitable to recall a member of the Bundesbank even against his will. The authors adopt the view that the dismissal should be treated as something akin to an actus contrarius of the nomination and the revocation procedure should, thus, follow the lines of the appointment procedure in an inverted manner. In doing so, one has to reject the (unofficial) stance of the Bundesbank that the grounds for revocation and the revocation procedure may be laid down in the articles of employment concluded between the Bundesbank and each member of its board. Since revocation regards the termination of a public office, which comes into existence by a public administrative act, i.e. the appointment, its requisites and its procedure may not be left for a contract to decide. Since the procedure of revocation, thus, mirrors the procedure of nomination, only the Federal Government, the Bundesregierung, or the upper house of the German parliament, the Bundesrat, depending on which body nominated the member in question, may request the German President, the Bundespräsident, to recall the member from office. In divergence to the Bundesbank's position and its contractual practice, the board of the Bundesbank itself is not an admissible appellant. The board is only involved insofar that the respective appellant, i.e. Bundesregierung or Bundesrat, has to invite the board to submit its opinion before transmitting the request for dismissal to the Bundespräsident. The authors than elaborate what circumstances might amount to sufficient grounds for a revocation and identify all legal measures the board member in question, the board of the Bundesbank itself or the Governing Council of the ECB may take before German courts or before the ECJ against any decision relieving a member of the board of the Bundesbank from his office. The grounds for dismissal can be taken from Art. 14.2 of the Statute of the ESCB, which applies directly to the President of the Bundesbank – but also (although indirectly) to all other members – and allows a dismissal only where the person in question no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct. Despite the solutions offered one must still regret the legal uncertainty that attaches to the permissibility of dismissal, of its procedure and its requisites. The legislator should, insofar, feel strongly invited to pass new legislation regarding the dismissal of board members of the Bundesbank. Such provision should, however, pay heed to the Bundesbank's need of and right to independence, which has been paramount to the continued succe